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

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font:7pt 'Times New Roman'; display:inline-block } .sFBC99493 { font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8A9EE819 { margin-top:42pt; margin-bottom:0pt } .sA7EA9CB9 { width:178.3pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   SECOND SECTION       CASE OF EMİNAĞAOĞLU v. TURKEY   (Application no. 76521/12)   JUDGMENT   Art 6 § 1 (civil) • Access to court • Tribunal established by law • Inability of judicial officer to have recourse to judicial review of disciplinary proceedings against him • Need to safeguard the independence of the judiciary and public trust in its functioning • Art   6 applicable • Special bond of trust between State and applicant not justification for exclusion of Convention rights given judiciary members’ special status and importance of judicial review of disciplinary proceedings concerning them • Absence of review by a body exercising judicial functions or by an ordinary court Art 8 • Private life • Use in disciplinary investigation of recordings of applicant’s telephone conversations, intercepted during the criminal investigation against him, not “in accordance with the law” Art 10 • Freedom of expression • Disciplinary sanctions imposed on applicant for different statements made • Highly defective decision-making process without indispensable safeguards for judicial professions and for the chair of an association of judges and prosecutors • Absence of effective and adequate safeguards against abuse   STRASBOURG   9 March 2021     FINAL   05/07/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Eminağaoğlu v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Aleš Pejchal,   Egidijus Kūris,   Carlo Ranzoni,   Pauliine Koskelo,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 26 January 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns disciplinary proceedings against the applicant, who was a judicial officer [1] , mainly on account of certain statements he had made on various occasions. THE FACTS 2.     The applicant was born in 1967 and lives in Ankara. He was represented by Ms P. Akgül Doğusoy, lawyer. 3.     The Government were represented by their Agent. 4.     The facts, as submitted by the parties, can be summarised as follows. THE CIRCUMSTANCES OF THE CASE The applicant’s career 5.     On 23 November 1989 the applicant began his career in the national judicial service. On 1 July 1998 he was appointed to the post of prosecutor at the Court of Cassation. In June 2011 he was appointed as judge in Istanbul. Then on 13 June 2012, when he was a judicial officer “of the first grade” ( birinci sınıf ), he was transferred to the post of judge at Çankırı by an instrument of appointment issued on the same day by the High Council of Judges and Prosecutors ( Hakimler ve Savcılar Yüksek Kurulu – “the HSYK”), after a disciplinary sanction had been imposed on him. When he was a judge in Çankırı, on 10 February 2015, he applied to the HSYK for leave of absence in order to stand in the twenty-fifth parliamentary elections. In response the HSYK decided that he should be regarded as resigning from his duties with effect from 10 February 2015. Moreover, at the material time, he was chair of Yarsav, an association of judges and prosecutors. Background to the case 6.     In the Government’s submission, prior to the imposition of the disciplinary sanction which is the subject of the present case, the Ministry of Justice had received two letters of denunciation from C.V. and from U.C., the latter being the press officer of a teachers’ union, on 11   February 2008 and 13 September 2009 respectively. With regard to the first letter, the applicant had been criticised for taking part in a parade to promote secularism. As to the second letter, the author had denounced the applicant’s conduct in relation to several press statements he had made with the alleged aim of influencing the “Ergenekon” trial (on this trial, see, among other cases, Özkan v. Turkey (dec.), no. 15869/09, 13 December 2011: in 2007, the Istanbul Public Prosecutor’s Office had initiated a criminal investigation against alleged members of a criminal organisation known as “Ergenekon”, all of whom were suspected of engaging in activities aimed at the overthrow by force and violence of the elected government; in a number of indictments, the Istanbul public prosecutor’s office had brought criminal proceedings before the Istanbul Assize Court against several individuals – including generals and army officers, members of the intelligence services, businessmen, politicians and journalists – for planning a coup d’état with the aim of overthrowing the democratic constitutional order, a crime punishable by life imprisonment, mainly on the basis of Article 312 of the Criminal Code; the defendants in the trial were ultimately acquitted). 7.     Again according to the Government, in two letters of 13 and 14   August 2008 certain evidence obtained in the course of a criminal investigation into a terrorist organisation was submitted to the Ministry of Justice with a view to criminal proceedings against the applicant. 8.     In the context of two criminal investigations into the “Ergenekon” organisation initiated on 14 August and 14 October 2008 (with the approval of the Minister of Justice granted on 15 April and 5 September 2008), the Office of the Inspector General of Justice had applied to the Istanbul Assize Court for authorisation, inter alia , to place under surveillance the telephone line registered in the applicant’s name, in accordance with section   101 of Law no. 2802 on judges and prosecutors (“Law no. 2802”). It appears from the file that this request for approval indicated, among other reasons, that the “Ergenekon” organisation had a particular structure and that its strict hierarchy prevented its members from knowing each other, that it presented a definite public danger in view of its capacity for action, and that there was no other means of identifying its members or finding out about its action plans. It can also be seen from the file that, on 14 October 2008, the Istanbul Assize Court granted the requested authorisation for a limited period of three months (for details of the phone tapping, see paragraphs 26-35 below). 9.     The Government further indicated that, on 17 September 2009, the inspectors investigating the allegations in question had submitted their report, concluding that some of the allegations called for criminal and disciplinary investigations. Since the applicant’s conduct had been considered by the inspectors to require the opening of a criminal investigation, the investigation file had been transmitted to the competent public prosecutor’s office pursuant to section 89 of Law no. 2802 and, in addition, a copy of that file had been submitted to the HSYK pursuant to section 87 of the same Law. Disciplinary proceedings against the applicant Opening of disciplinary proceedings 10.     According to the applicant, on 30 October 2009 the Minister of Justice agreed to open disciplinary proceedings against him (the relevant document was not produced by the parties). The information in the file shows that the applicant stood accused, through his actions and statements, of undermining the dignity and honour of the profession and of having forfeited his personal dignity and esteem. 11.     Furthermore, the applicant stated that, in a letter of 12   November 2009, the Directorate General for Criminal Affairs at the Ministry of Justice had informed him of the disciplinary proceedings opened against him and had invited him to submit arguments in his defence. 12.     On 10 December 2009 the applicant submitted observations in his defence. He denied all the allegations made against him. In addition, he contested the manner in which the investigation had been conducted, invoked the protection of Articles 6, 8, 10, 11 and 13 of the Convention and maintained that it was his duty to share his views with public opinion. Decision of 19 July 2011 13.     On 19 July 2011 the Second Chamber of the HSYK, sitting as a panel of seven members, namely N.O. (President), A.E.T., A.G., Z.Oz., H.S., A.A. and B.E., issued its decision on the disciplinary proceedings against the applicant. It decided by a majority to impose the sanction of transfer ( yer değiştirme cezası ) on the applicant pursuant to section   68(2)(a) of Law no. 2802 (see paragraph 39 below) on the ground that, by his statements to the media, he had undermined the dignity and honour of the profession and had forfeited his personal dignity and esteem ( mesleǧin şeref ve nüfuzu ile şahsi onur ve saygınlıǧını yitirdiǧi ) (decision no. 460). The parts of that decision relevant to the present case read as follows (the allegations confirmed at the end of the disciplinary proceedings are indicated in italics – see paragraphs 18 and 24 below): “... The investigation into Judge Ömer Faruk Eminaǧaoǧlu reveals as follows. (1) He organised a press statement on behalf of Yarsav [association of judges and prosecutors] on the premises of the Court of Cassation on 12 January 2009, in violation of sections 2 and 3 of the Associations Act ... (2) By directly targeting the judges and prosecutors involved in the criminal case known as ‘Ergenekon’ and by making illegal political statements, he sought to influence [the pending case] in breach of Article 277 of the Criminal Code; to achieve this, he took advantage of his official title [and] made statements and criticisms about the investigation procedure and its conduct in favour of certain suspects and defendants in order to influence public opinion. In that connection: (a) On 29 October 2008, at 10.59 a.m., he had a telephone conversation with I.T., a columnist for the daily newspaper Cumhuriyet , and discussed with him [the failure to grant] a promotion to Z.O., the prosecutor who was conducting the Ergenekon criminal investigation; after this conversation, he sent a telephone message to certain members of the High Council of Judges and Prosecutors and telephoned to correct a number he had given. (b) On 10 January 2009, at 2.13 p.m., during a telephone conversation with M.T.K., he made an appointment [with M.T.K.] to ‘visit M.B., a representative of the daily newspaper Cumhuriyet in Ankara, between 5 p.m. and 5.30 p.m.’. (c) He paid a visit to the office of Cumhuriyet , the daily newspaper for which M.B. [journalist] worked (M.B. having been remanded in custody on charges of ‘membership of a terrorist organisation [and] attempting to overthrow the government of the Republic of Turkey or partially or totally obstructing the performance of its duties’), [a visit which] was described in the 7 March 2009 issue of Cumhuriyet as ‘a support visit’; in the statements he made [during the visit], he criticised the manner in which M.B.’s statement had been taken, in order to put pressure on the public prosecutor. (d) On 21 March 2008 [during his appearance] on the private television channel Kanal Türk, during the programme broadcast at 6.30 p.m., he said the following: ‘... to remand a 91-year-old in custody there must be a suspicion, a suspicion of tampering with evidence and a [risk] of absconding. In these circumstances, you can remand a person in custody. But there are certain rules. If you summon him/her to take a statement, you must comply with the formalities. Otherwise you do not have the power to do what you want and as you like. The procedure has to be complied with [legally] as well ...; I saw the Prime Minister’s statements broadcast on NTV [a private television channel] on 19 February ... and he said: ‘These are the people who harassed us before we came to power. Now we are trying to unmask them’ ... we cannot allow any suspicion to hang over the justice system that a criminal investigation is being carried out to order. In no way can such a doubt be allowed to subsist. Justice must be given to the justice system. It cannot be claimed that a criminal investigation was a ‘success’ of the justice system and the executive [at the same time]. The justice system cannot conduct a criminal investigation together with the executive ... It is the prosecutor who conducts the criminal investigation. (e) In a television programme broadcast on 23 March 2008 ..., he was asked: ‘In the context of the criminal investigation into the alleged terrorist organisation Ergenekon , is the fact that the journalist I.S. was arrested during the night and that this elderly and sick person was held in police custody for 30 hours compatible with democratic [values]?’ and [the applicant] replied as follows: ‘It is not even appropriate to answer that question, it is obvious that [this is not acceptable]. I also want to stress that the European Court of Human Rights has very frequently found violations by Turkey in this regard’. He went on to say: ‘Is it the government that is conducting this criminal investigation on terror? Does the government know about it? Is it the government that is in control? When you look at some of the statements, speeches ..., the Prime Minister says: “We made some findings before we came to power, now we are trying to reveal them”. This is a serious attack on the investigating authorities; in other words, you are saying that “we made some findings before we came to power and we have informed the justice system [of them]. It is the justice system which is investigating the matter”. Can the justice system carry out an investigation to order? Such an attack is likely to influence the investigating authorities. Even so, that is not all they are saying ... they add that “up to a certain point, it was the security directorate which conducted the investigation, then handed it over to the justice system”. Police custody is a possibility, legally speaking. Is it absolutely necessary to take someone into police custody? Is there any suspicion of [a risk of] absconding? You must explain this but you can’t apply it [placement in police custody] in all circumstances. You have to explain the legal basis that can justify the taking of such measures during the night, at a given time. You can do so, you have the power to do so, but you cannot do this whenever you like if there is no necessity and you yourselves must justify this necessity’. The presenter asked him the following question: ‘does that mean that they must demonstrate the need to go and arrest I.S. [the Cumhuriyet columnist] at 4 a.m. at his home?’; he replied as follows: ‘You have to provide some justification for it, otherwise it is an abuse of power, arbitrary conduct . (f) In a telephone conversation on 7 January 2009 at 9.45 p.m., he advised Mr. A.A. that E.A. [that lawyer’s client], who had been arrested in the context of the same criminal investigation [this must be the Ergenekon case], was required to remain silent when interviewed by the security directorate regardless of the questions and that, as lawyer [of that client], he had to submit a request for immediate appearance before the public prosecutor. (g) At the demonstration held at Anıtkabir on 18 April 2009 to protest against the remanding in custody of the university rector Başkent, M.H., and other rectors, he made the following statements to journalists: ‘Now it has turned into an attack on science; they have started throwing a “grenade” [ hiza bombası (a term used to describe an official warning, of the disciplinary type)] at the judiciary and science; we will not let anyone throw such grenades’. (h) He participated in a round table entitled ‘The Ergenekon Conspiracy, Putting the Judicial System to the Test’ [ Ergenekon Tertibi ve Yargının Sınavı ], held in Germany on 9 May 2009 ..., and said [on that occasion]: ‘in Turkey there is an undeclared state of emergency; they are trying to manipulate public opinion by putting pressure on the judicial system and by human rights violations’. (i) [about a telephone conversation with M.A., Chair of the Istanbul Bar Association] (j) In a telephone conversation with I.T., a Cumhuriyet columnist, on 5 March 2009 at 4.10 p.m., in response to a question put by [him] concerning the second time the columnist M.B. had been taken into police custody, he said: ‘No, it is not possible Mr   Ilhan, if he had previously absconded, he should not be released; but he did not abscond [after his release]; they have acted so [improperly], if the court ordered the release, it means that the conditions of detention were not satisfied: he had not absconded or tampered [with evidence]. This was confirmed by a court decision’. (k) [concerning a telephone call from the same journalist, in which he expressed his views on the police custody and detention of M.B.] (3) By his attitudes and behaviour, [the applicant] created the conviction that he could not perform his duties in a correct and impartial manner. In this context, in view of his statements about a prosecution known to the public as the ‘ Ergenekon case’, [which is] a pending case and [about which the applicant] could have to form an opinion in his capacity as public prosecutor at the Court of Cassation during the examination on points of law, [he] acted not as a public prosecutor but as a politician. (a) On 21 October 2008, at 2.28 p.m., in a telephone conversation that he had with S.Y., a journalist working for the daily newspaper Yeniçaǧ , he openly expressed his views on the disqualification of a judge in charge of the case in question and on the jurisdiction of the court and dictated these views to the journalist, warning him that his name should not appear in the article. (b) On 10 January 2009, at 11.02 p.m., in a telephone conversation with Mr A.A., he asked about the situation of some of the suspects in the Ergenekon case; after Mr A.A. had told him ‘that he had spoken with Mr Turan, who told him that the questioning by the public prosecutor’s office was continuing’, he asked to be ‘kept informed regardless of the time’. (c) In articles published in the 25 January 2007 issues of the daily newspapers Milliyet and Vatan , quoting an article written by [the applicant] and published on a website accessible to lawyers, he stated that ‘the criminal cases concerning Article 301 of the Criminal Code [had been] brought because of pressure from public opinion and the media rather than being assessed from a legal perspective, [that] Hrant [Dink, a Turkish journalist of Armenian origin, murdered in 2007 – see Dink v.   Turkey , nos. 2668/07 and 4 others, 14 September 2010] [had not been admitted] as a Turk, [and that] this [was] the problem for those who had distorted the ideas of Atatürk ( Atatürkçülük ) and the Treaty of Lausanne’. (d) During a news programme on the private channel Kanal D broadcast on 28   January 2007, he said: ‘from a legal perspective, Article 301 of the Criminal Code is problematic; in the case of Hrant Dink, as the principal prosecutor at the Court of Cassation, [I] expressed the opinion that the offence had not been committed, that the criminal prosecution had been initiated by “pulling with forceps” a sentence of the eighth article [written by M. Dink]; the courts ruled by taking into account only the perception of public opinion’. (e) In a documentary on the murder of Hrant Dink published on 8 February 2007 ..., he said ... : ‘The criminal prosecutions relating to Article 301 of the Criminal Code were triggered by pressure from public opinion; whereas from a legal perspective nobody has the right to be a third-party intervener, many [people] have made requests to intervene [in the context of] these cases, [being driven] by different political sensitivities; the statements of the accused are not quoted in full in the press and only some of the statements that are the subject of the proceedings are quoted; the context in which these statements were made is not taken into consideration; the term “Turkishness” in Article 301 [of the Criminal Code] may also include the judge who is going to hear the case; [I myself] prepared an opinion that an offence had not been committed by Dink’s article, but the Court of Cassation rejected it’. (f) [about a lunch that the applicant had with an accused in the Ergenekon case] (g) [about the applicant’s participation in a meeting at which many of the accused in the Ergenekon case were present] (h) [concerning a visit by the applicant to S.K., a former Principal Public Prosecutor at the Court of Cassation, against whom an arrest warrant had been issued] (i) [concerning attempts to make a telephone call to H.T., a person who had been remanded in custody in connection with the above-mentioned case and subsequently released on bail due to health problems] (j) [about a lunch that the applicant had with another accused person in the same case] (k) The statements, attitudes and behaviour listed under (2) (b), (c), (d) and (f) above. ... (4) By his wrongful conduct and improper relations, he has [undermined] the dignity and honour of the profession and has forfeited his personal dignity and esteem. (a) While serving as a prosecutor at the Court of Cassation, he engaged in speeches and behaviour which are not in keeping with his official position or with the aims and regulations of Yarsav [the association of judges and prosecutors], of which he was chair. For example: (i) At a conference ... he said: ‘... the voice which once spoke out in Çankaya [former residence of the President of the Republic] against the statements of international institutions that cross the line of intervention in the judicial system is no longer speaking out today’. (ii) Regarding a statement by the President of Religious Affairs, A.B., published in the daily newspaper Hürriyet on 8 March 2008, in which he had stated ‘... the compulsory religious education course is against the law; why did the Supreme Administrative Court, which issued [this] decision, not ask for our opinion?’, [the applicant] said the following: ‘the fact that A.B., who had protested in the past about a failure to obtain the opinion of the Islamic clergy ( ulema ), expressed himself in this way is very unjust, [shows a great] bias, [is] illegal; the fact of directing criticism against the courts, which could only take as a reference national or international legal texts, which could only be based on [these], amount to intervention of religion in the legal field, of the State, [and] is inadmissible in a secular legal order’. (iii) He took part in a meeting held on 9 December 2007 ... and expressed himself as follows on that occasion : ‘In 1969 we were Imran Öktem [former President of the Court of Cassation, known for his pro-secular ideas, who died in 1969], at our [1969] funeral [we were harassed]; in 1978 we were Doǧan Öz [public prosecutor, murdered in 1978], they killed us, [but] we continued to practise our profession; in 1992 we were Yaşar Günaydın [public prosecutor, murdered in 1992], they killed us, [but] we continued to practise our profession ..."; in 1995, we were Ali Günday [Chair of the Bar of Gümüşhane, murdered in 1995], they killed us, [but] we continued to practise our profession; in 2006, we were Yücel Özbilgin [judge at the Supreme Administrative Court, murdered in 2006], they killed us, [but] we continued to practise our profession; today they want to enchain the justice system; in the new Constitution, it is the part devoted to the justice system that is undergoing the most significant changes; they are in the process of destroying the independence of the justice system’; (iv) In his statements published on 16 May 2007 in the daily newspapers ..., he said the following: ‘F.K., a former secretary to the Ministry of Justice, who was appointed as Minister of Justice, is not independent [during the election period the Minister of Justice was to be replaced by an independent Minister of Justice]. The fact that he was appointed Minister of Justice enabled him to chair the High Council of Judges and Prosecutors, which had lodged a complaint against him] because of his attitude and behaviour during the election of the members of the Court of Cassation and the Supreme Administrative Court’. (v) In his statements published on 17 August 2007 and 18 August 2007 in the daily newspapers ..., he stated with regard to A. Gül’s candidature for the Presidency of the Republic: ‘The conduct expected of persons against whom legal proceedings have been brought and are still pending is not to become President of the Republic, in order to preserve the honour of the State; the appearance of wives is a message conveyed to society; [consequently,] the fact that the President of the Republic put on display the Islamic headscarf, [a symbol] belonging to a religion and now having acquired a political dimension, through the intermediary of his wife, not as her own personal choice ..., [demonstrates that] he could not act independently of religion and that he has supported the spread of the Islamic headscarf’. (vi) In his interview with The Guardian on 28 July 2008, he said : ‘The AKP [ Adalet ve Kalkınma Partisi - Justice and Development Party], the ruling party, was seeking a system of sharia law that would destroy the country’s secular system. The government had exposed its true agenda in a series of measures, including attempts to establish halal standards in food production, signing bilateral agreements underwritten by "Islamic laws" with fellow Muslim countries, increasing religious education at State schools and allowing female students to wear headscarves at university; the moves were aimed at reviving an Islamic consciousness dormant since the end of the Ottoman Empire, leading to a religious society where secular lifestyles were discouraged and women denied equal status’. (vii) In his interview entitled ‘The Prime Minister’s statements on the warnings of the Principal Public Prosecutor at the Court of Cassation’ published on 22   January 2008 in the daily Cumhuriyet , he said the following: ‘the courts are not bodies that act upon the requests of the legislature and the executive; the political authority cannot change the concept of freedom of expression and must not, through actions and speeches, prepare the ground for the erasure of judicial decisions with which it must comply; the political leadership must abandon [the idea] of making a target for such speeches, which are incompatible with law and democracy; the political leadership, which is not satisfied with this situation, has sought to devalue the role of the judiciary in the current system; in this context, the political leadership has demonstrated its aim of rendering the courts passive vis-à-vis the legislature and the executive in the draft Constitution; the political authority must abandon its vision of superiority; the supremacy of law is fundamental; it must not be forgotten that in a State governed by the rule of law there are areas in which the power of the majority cannot allow everything; it [the political authority] must not create unfounded expectations and tensions over matters that cannot be changed from a legal perspective.’ (viii) [In the interview published] in the daily newspapers on 31 January 2008 ... and broadcast on the television channel ..., he expressed himself as follows: ‘The amendment relating to the Islamic headscarf is not compatible with revolutionary laws; this situation will have consequences which are capable of changing the social structure and overturning the current secular system ...; this is the main reason why the courts could not recognise freedom of dress; even though the European Court of Human Rights has noted this situation, it is astonishing to see that the Turkish legislature, symbol of the war of independence, does not take it into account’. (ix-xviii) [regarding numerous statements by the applicant published in daily newspapers or broadcast on private television channels, and regarding a statement by the applicant published in the 31 January 2008 issue of the daily newspaper Hürriyet on the wearing of Islamic headscarves by female students] (xix) [concerning several telephone conversations on the political activities of a political party] 4.b He passed on information to certain individuals and the media, [which is] incompatible with his position as prosecutor at the Court of Cassation. ... (5) [concerning conduct which does not respect the secrecy of the judicial investigation] ... (6) [concerning failure to comply with working hours].” 14.     In reaching its decision, the Second Chamber of the HSYK took into account the conduct and statements listed in paragraphs 2 and 4 in their entirety, and also those listed in paragraph 3, sub-paragraphs (a), (b), (c), (d), (e), (h), (i) and (k). It took the view, inter alia , that, by directly targeting the judges and prosecutors involved in the Ergenekon criminal case and by making unlawful political statements, the applicant had sought to influence the pending case and that, to that end, he had taken advantage of his official title and had made statements and criticisms about the investigation and in support of certain suspects and defendants in order to influence public opinion. It further found that, by his attitudes and conduct in relation to the Hrant Dink and Ergenekon cases – judgments which could be appealed against on points of law and thus be examined by the Court of Cassation, where he might thus be called upon to submit a legal opinion – the applicant had created the conviction that he could not carry out his duties in a correct and impartial manner and had acted not as a public prosecutor but as a politician. The parts of the conclusion of this decision that are relevant to the present case read as follows: “While he was serving as prosecutor at the Court of Cassation, [the applicant] engaged in speeches and conduct which were not in keeping with his official position or the aims and regulations of Yarsav, of which he was chair; he had contacts with certain individuals in a manner that was incompatible with his office ..., and he passed on information on various subjects to the media in a manner that was inappropriate to his position as prosecutor at the Court of Cassation. [As a result,] he has [undermined] the dignity and prestige of the profession and has forfeited his personal dignity and esteem. [Consequently], the sanction of disciplinary transfer must be imposed on him, pursuant to section 68(2)(a) of Law no. 2802 ...” The applicant’s request for review of the 19 July 2011 decision 15.     On 20 February 2012 the applicant applied to the Second Chamber of the HSYK for a review of its decision of 19 July 2011. In support of his request, he complained in particular about a lack of reasoning in the decision and relied, inter alia , on his right to freedom of expression. 16.     On 29 March 2012 the Second Chamber of the HSYK dismissed the application for a review of its decision. The applicant’s appeal to the HSYK’s Plenary Assembly 17.     The applicant appealed against the decision of 19 July 2011 before the Plenary Assembly of the HSYK. 18.     On 6 June 2012 the Plenary Assembly, consisting of seventeen members including five members of the Second Chamber, and sitting as an appellate formation, gave its decision in which it rejected the applicant’s appeal in so far as it concerned the above-mentioned points 2   (c),   (d),   (e),   (g) and (h), point   3   (c),   (d) and   (e) and point 4 (a) (i-viii), and upheld the disciplinary sanction in question. It took the view, however, that some of the allegations listed in the above-mentioned point 2 (a), (b), (f), (i), (j) and (k), point 3 (a), (b) and (i), point 4 (a) xix, and point 4   (b)   (i-x), were based on the transcriptions of bilateral telephone communications and that their content was not of such a nature or seriousness as to call for the imposition of a sanction. It decided that it was not necessary to impose a sanction in respect of the accusations concerning the said telephone conversations. As the HSYK decided not to amend the disciplinary sanction, the transfer of post imposed on the applicant thus became final. The applicant’s disciplinary transfer 19.     The case file shows that, during the disciplinary investigation, the applicant was appointed to a new post as judge in Istanbul. After the disciplinary sanction became final, by a decision of 13 June 2012, the First Chamber of the HSYK decided to transfer him to a post of judge in Çankırı. The applicant’s request for rectification of the decision of 6 June 2012 20.     On 5 October 2012 the applicant submitted a request for rectification of the decision of 6 June 2012. 21.     On 7 November 2012 the HSYK declared that request inadmissible, taking the view that the decision of 6 June 2012, following an appeal by the applicant, had become final, pursuant to section 33 of Law no. 6087. Review of the disciplinary sanction following the entry into force of Law no. 6572 22.     On 2 December 2014, following the entry into force of Law no.   6572, a transitional provision was added to Law no. 2802 (transitional section 19 of Law no. 6572). This provision allowed judges and prosecutors to apply to the Plenary Assembly of the HSYK for a review of disciplinary sanctions imposed on them pursuant, inter alia , to section 68 of Law no.   2802 for acts committed between 14 February 2005 and 1 September 2013. 23.     On 6 January 2015, on the basis of transitional section 19 of Law no.   6572, the applicant applied to the HSYK for a review of the disciplinary sanction imposed on him. 24.     In a decision of 15 April 2015 the HSYK decided to review the disciplinary sanction and to give the applicant a reprimand instead. The parts of that decision relevant to the present case read as follows: “... The request for review ... has been examined and it has been unanimously decided ... to impose the sanction of reprimand pursuant to section 65(2)(a) of Law no. 2802, in place of the sanction of disciplinary transfer, which was decided on 19   July 2011 and became final on 6 June 2012 for the acts listed in points 2 (c), (d), (e), (g), (h), 3 (c), (d), (e), 4 (a) (i-viii) ...” 25.     In a decision of 7 October 2015 the HSYK’s Plenary Assembly rejected the applicant’s request for a review of the decision of 15   April 2015 (a copy of that request was not produced by the parties). Phone tapping and criminal proceedings 26.     On a date not specified in the file, criminal proceedings were brought in the Court of Cassation against the applicant for violation of Articles   277 and 288 of the Criminal Code, ultimately resulting in his acquittal on the charges brought under those provisions (judgment of the Court of Cassation of 3 June 2010). 27.     Furthermore, in the context of two criminal investigations initiated on 14 August and 14 October 2008, the Office of the Inspector General of Justice submitted to the Istanbul Assize Court a request for authorisation, inter alia , to place under surveillance the telephone registered in the applicant’s name, under section 101 of Law no. 2802 (information supplied by the Government; see paragraph 8 above). 28.     On 14 October 2008 the Istanbul Assize Court granted the requisite authorisation for a limited period of three months. In so doing, it stated, among other reasons, that the “Ergenekon” organisation had a special structure and that its strict hierarchy prevented its members from knowing each other, that it presented a definite public danger in view of its capacity for action, and that there was no other means of identifying its members and finding out about its action plans. 29.     On 14 January 2009 the inspectors conducting the investigation requested an extension of the telephone surveillance. 30.     On 15 January 2009 the Istanbul Assize Court granted the requested extension for three months, reiterating the reasons given in the earlier decision. According to a document in the file, the interception of the applicant’s telephone calls was discontinued at the end of that period (namely on 14 April 2009). 31.     On 19 January 2009, after examining the reports relating to the first period of telephone tapping, the inspectors took the view that the recorded conversations fell within the ordinary law for the purposes of section 93 of Law   no.   2802 and Article 250 of the Code of Criminal Procedure. Accordingly, these reports were forwarded to the Istanbul Public Prosecutor’s Office responsible for organised crime. 32.     On 28 December 2009 the above-mentioned public prosecutor discontinued the investigation. In so deciding he took the view that the evidence gathered did not make it possible to say that the judges or prosecutors in question – including the applicant – had provided assistance or support to the organisation in question. Taking the view that the actions of one of the judges might require an individual disciplinary or criminal investigation, he referred this part of the case to the Ministry of Justice. Furthermore, relying on Article 17 § 1 of the Code of Criminal Procedure, he stated that since the suspects had not been called to give evidence in the investigation against them, it was not necessary to notify them of his decision. In addition, he ordered the destruction of the material obtained in the course of the surveillance and the drawing-up of a report to that effect, together with notification of the telephone surveillance to the persons concerned. 33.     In a letter of 31 December 2009 marked “confidential”, the Istanbul public prosecutor in charge of the investigation sent the applicant, at his office in Uşak, under Article 137 §§ 3 and 4 of the Code of Criminal Procedure, an information note on the discontinuance of the proceedings and the destruction of the material gathered during the surveillance. According to the information in the file, on the same date the records of the telephone tapping were destroyed by the Istanbul Public Prosecutor’s Office in accordance with the discontinuance decision. On 5   January 2010 the computer media carrying the recordings in question were in turn destroyed by the same authorities. 34.     On 23 March 2012 the applicant appealed against the decision of 28   December 2009 to discontinue the case and requested the destruction of all the data obtained through the interception of his communications. 35.     In a decision of 22 May 2012 the Assize Court in Ankara dismissed the applicant’s appeal, noting that the records of the intercept evidence had already been destroyed. RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE The status of prosecutors in the Turkish judicial system 36.     The Turkish judicial system does not make a fundamental distinction between the status of judges and prosecutors: first, the HSYK takes decisions regarding the admission of judges and prosecutors into the profession, their appointment, their transfer to other posts, their promotion and the supervision of judges and prosecutors in the performance of their duties (see Article 159, paragraphs 8-9, of the Constitution). Moreover, under Law no. 2802 on judges and prosecutors, they are subject, among other things, to the same provisions relating to their careers and disciplinary proceedings. In particular, Article 139 of the Turkish Constitution reads as follows: “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.” The Constitution 37.     The HSYK (the “High Council of Judges and Prosecutors”, which has become the “Council of Judges and Prosecutors” since the constitutional reform of 2017) is a body constituted under Article 159 of the Constitution, as amended on 12 September 2010 by Law no.   5982. At the relevant time this provision read as follows: “The High Council of Judges and Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the security of tenure of the judiciary. The High Council of Judges and Prosecutors shall have a total of twenty-two full members and twelve substitute members; it shall comprise three chambers. The Minister of Justice shall be the chair of the Council. The Under-Secretary of the Ministry of Justice shall be an ex officio member of the Council. The following shall be appointed for terms of four years: four full members, whose qualifications shall be specified by law, shall be appointed by the President of Turkey from among the teaching staff in the field of law at higher education institutions and/or from among practising lawyers; three full members and three substitutes shall be elected by the general assembly of the Court of Cassation from among the members of that court; two full members and two substitutes shall be elected by the general assembly Supreme Administrative Court from among its members; one full member and one substitute shall be appointed by the general assembly of the Justice Academy of Turkey from among its members; seven full members and four substitutes shall be elected from among the judges and public prosecutors of the first grade [with the requisite qualifications for classification in the first grade] at the civil courts; three full members