CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 juin 2024

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TÜRKİYE (Applications nos. 58901/19 and 6 others)   JUDGMENT   Art 6 § 1 (civil) • Fair hearing • Administrative proceedings dismissing the applicants’ requests to set aside domestic authorities’ refusal to appoint them to public service, despite fulfilling all formal conditions, on account of negative background checks • Full content of background checks or concrete factual grounds on which administration’s assessment was based not disclosed to applicants • Domestic courts’ failure to communicate to the applicants information on impugned background checks and seek their comments on allegations against them • Failure to assess whether all or some of the information forwarded by the administration was classified and whether national security interests justified non-disclosure to the applicants • Lack of adequate safeguards to make up for non-disclosure of evidence • Failure to effectively and adequately provide a sufficient review of relevant administrative decisions Art 15 • Failure to observe requirements of a fair trial, unjustified by the derogation in time of emergency • Emergency legislative decree placed no restrictions on judicial review following refusal to appoint individuals to civil service on basis of a negative background check • Domestic courts did not refer to state of emergency in review of the applicants’ cases as preventing them from assessing the merits of the complaints   Prepared by the Registry. Does not bind the Court.   STRASBOURG 25 June 2024 FINAL   16/12/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurkut and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Pauliine Koskelo,   Saadet Yüksel,   Frédéric Krenc,   Davor Derenčinović,   Gediminas Sagatys , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the applications (nos.   58901/19; 59988/19; 14944/20; 23565/20; 29101/20; 42116/20; 28956/21) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Turkish nationals (“the applicants”), on the various dates indicated in the appended table; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Article 6 § 1 in respect of all applicants, and Article   6   §   2 in respect of application no. 29101/20 and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 28 May 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applications concern the authorities’ refusal to appoint the applicants, who fulfilled all the formal conditions, to public service on account of negative background checks and the alleged unfairness of the administrative law proceedings in which the applicants requested the courts to set aside the authorities’ refusal. The applicants all complained of a violation of Article 6 § 1 of the Convention. The applicant in application no. 29101/20 further complained of a violation of his right to presumption of innocence enshrined in Article   6   §   2 of the Convention on account of the administrative court’s reasoning allegedly casting doubt on his established innocence. THE FACTS 2.     A list of the applicants is set out in the Appendix. 3.     The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. 4.     The facts of the cases, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. background to the case 5.     The coup d’etat attempt of 15 July 2016 and the declaration of a state of emergency is summarised   in Yüksel Yalçınkaya v.   Türkiye   ([GC], no.   15669/20, §§ 10-17, 26 September 2023). The state of emergency remained in force from 21 July 2016 to 18 July 2018. 6 .     During the state of emergency, the Council of Ministers passed several legislative decrees. One of those decrees, Legislative Decree no. 676, (see paragraph 71 below) added a provision to the Civil Servants Act, making it compulsory to obtain a positive background check for appointment into civil service. This provision entered into force on 29 October 2016 and was further approved by the Parliament on 1 February 2018, therefore becoming permanent legislation. 7.     On 24 July 2019 the Constitutional Court struck down this provision as unconstitutional (see paragraph 74 below). individual circumstances of the applicants Application no. 58901/19 (Naci Kurkut) 8.     The applicant was successful in a series of exams held by the Social Security Institution between 31 October and 4 November 2016 for the position of social security assistant officer and was placed in the list of successful candidates to be appointed to civil service. 9.     On 3 August 2017 the Social Security Institution informed the applicant that he could not be appointed on account of a negative background check. No other reasons were provided. 10.     On 2 October 2017 the applicant made an application to the Ankara Administrative Court, asking for the Social Security Institution’s decision of 3   August 2017 to be set aside. He argued that the administrative authority had not relied on any reasons for its refusal to issue him with a positive background check nor had it based itself on any specific provision of law. He therefore reserved his right to submit further arguments against the information or documents that would be submitted by the administrative authority in the course of the proceedings. 11.     On 25 April 2018 the Ankara Administrative Court dismissed the case on the basis of Article 48 § A-8 of Law no. 657 and Article 1 of Law no.   4045, noting that information revealed by the applicant’s background check justified the administration’s decision to refuse his appointment into civil service given that the position of the social security assistant officer which had the function of analysing, assessing and keeping data – some of which was confidential – was a sensitive position and therefore required background clearance. 12 .     The applicant appealed against the decision of 25 April 2018 before the Ankara Regional Court arguing that the first-instance court failed to carry out an effective judicial review with respect to his case. He noted that the defendant administrative authority had submitted before the first-instance court that the reason he had been refused positive background check was his and his brother’s alleged involvement in the activities organised by the   PKK (Workers’ Party of Kurdistan). The defendant had not submitted any document or evidence to support this allegation and the first-instance court had taken this statement at face value. He further complained that defendant’s submissions had not been communicated to him for comment during the proceedings before the first-instance court. Lastly, he reiterated that he did not have a criminal record, and that he was not being investigated or prosecuted for any crime. 13.     On 13 September 2018 the Ankara Regional Court dismissed the appeal without replying to the applicant’s arguments. 14.     On 29 November 2018 the applicant lodged an individual application with the Constitutional Court, complaining under Article 6 of the Convention that the courts had failed to carry out an effective judicial review because they had not investigated the veracity of the administration’s allegations or at least considered whether such suspicions against him could have been based on objective grounds. He further deplored that the assessment of the administration about him had been partly based on his brother’s alleged connection with the PKK, which assessment did not coincide with the principle that criminal responsibility is individual. 15.     On 1 July 2019 the Constitutional Court dismissed the applicant’s individual application by using a summary formula, noting, inter alia , that his complaints under Article 6 was of a fourth instance nature. Application no. 59988/19 (Şükran Kesgin) Refusal to appoint the applicant to the position of psychologist in the Şırnak State Hospital 16.     On 7 November 2016 the applicant was informed that she was appointed to the Şırnak State Hospital as a psychologist as a result of her having been successful in a country-wide civil service examination. 17.     On 25 September 2017 the Ministry of Health’s Public Hospital Division (“Ministry of Health”) informed the applicant that she could not be appointed to the position of psychologist in the Şırnak State Hospital on the basis of Article 48 § 8-A of Law no. 657. No other reasons were provided. 18.     On 8 November 2017 the applicant made an application to the Ankara Administrative Court for the Ministry of Health’s decision of 25   September 2017 to be set aside. She noted that she did not have a criminal record and fulfilled all the conditions to be appointed to the civil service. Therefore, the Ministry of Health’s decision to refuse to confirm her appointment on the basis of a background check had been unlawful. 19.     On 3 April 2018 the Ankara Administrative Court dismissed the case, having regard to the contents of the documents and information it had sought by means of an interim decision on its own initiative from the Ministry of Health as well as from the Directorate of Security with respect to the applicant’s file. The court considered that the information in the applicant’s file justified the administration’s decision, regard being had to the specific nature of the post in question. 20.     On 7 September 2018 the Ankara Regional Administrative Court dismissed an appeal lodged by the applicant against the first-instance court’s decision, holding that it had been in line with the law and procedure. 21.     On 28 January 2019 the applicant lodged an individual application with the Constitutional Court complaining, inter alia , of the domestic courts’ failure to carry out an effective examination of her case and of the lack of reasoning of their decisions. 22.     On 30 September 2019 the Constitutional Court dismissed the applicant’s individual application by using a summary formula, noting, inter alia , that her complaints under Article 6 was of a fourth-instance nature. Developments after the lodging of the application and applicant’s subsequent appointment to the Kocaeli State Hospital 23.     In their observations, the Government informed the Court that the applicant had participated in another country-wide civil service examination in 2018 and that she had been informed that she would be appointed to the Kocaeli State Hospital for the position of a psychologist. 24.     On 16 January 2019 the Ministry of Health refused the applicant’s appointment on account of a negative background check. 25.     As a result of successful proceedings lodged by the applicant before the Ankara Administrative Court concerning the Ministry of Health’s refusal of 16 January 2019, the applicant was appointed to the said position in the Kocaeli State Hospital. The Government further informed the Court that the Ankara Administrative Court’s decision had become final on 23   December 2021. Application no. 14944/20 (Zeycan Doğan Özdemir) 26.     The applicant was successful in a series of exams held by the Directorate of Higher Education Credit and Residences within the Ministry of Youth and Sports (“Higher Education Directorate”) between 8 May and 18   May 2017. She was therefore placed in the list of successful candidates to be appointed to civil service for an administrative position. 27.     On 2 November 2017 the Higher Education Directorate informed the applicant that she could not be appointed to the said position on account of a negative background check. No other reasons were provided. 28.     On 15 December 2017 the applicant applied to the Ankara Administrative Court for the Higher Education Directorate’s decision of 2   November 2017 to be set aside. She submitted in that connection that the impugned decision was manifestly unlawful given that it was not supported by any evidence or concrete information and that she had no criminal record. 29.     In a decision of 25 October 2018 the Ankara Administrative Court dismissed the case on the basis of Article 48 § 8-A of Law no. 657 and by holding that the administration had a wide margin of appreciation in appointments into civil service. In that connection the trial court gave weight to a note issued by the Adıyaman Governor’s Security Office addressed to the Higher Education Directorate, which had stated that the applicant was involved with KCK/TY – a sub-group engaging in organisational activities and meetings within the female wing of the PKK/KCK – and her brother, who was currently detained, was a member of this organisation. Noting the sensitive and important nature of the public entity in question, the court concluded that the refusal to appoint the applicant on the basis of a negative background check had not been unlawful. 30 .     The applicant lodged an appeal against this decision before the Ankara Regional Administrative Court, complaining of the trial court’s failure to respect the principle of equality of arms and adversarial proceedings in so far as she had not been given the opportunity to examine and comment on the documents submitted by the defendant, including the note issued by the Adıyaman Governor’s Security Office. She further complained that the note prepared by the latter, which had not been based on any concrete facts or supporting evidence, had been taken at face value by the first-instance court and had not been judicially scrutinised. In this respect, she submitted that there were no ongoing proceedings against her regarding those allegations and that she had a clean criminal record. 31.     On 24 January 2019 the Ankara Regional Court dismissed the appeal without replying to the applicant’s arguments. 32 .     On 28 February 2019 the applicant lodged an individual application with the Constitutional Court, complaining of an infringement with her right to an effective judicial review under Article 6 of the Convention. She noted that the manner in which the administrative courts conducted the trial and the reasonings furnished by them had not been compatible with rule of law since they had solely relied on a note prepared by the Adıyaman Governor’s Security Office. Moreover, the courts had prevented her from defending herself effectively since they had failed to communicate to her the documents submitted to them by the administration regarding her background check. 33.     On 10 October 2019 the Constitutional Court dismissed the applicant’s individual application by using a summary-formula, noting that there appeared to be no violation of Article 6 in as much as the trial courts’ decisions had not been arbitrary or manifestly unreasonable. Application no. 23565/20 (Bahar Dolgun Kılıç) 34.     The applicant was a temporary worker at the Manisa Celal Bayar University (“the University”). On 26 February 2018 she participated in a written and oral recruitment examination with a view to obtaining a permanent position in that university. 35.     On 20 March 2018 the University informed her that she had been successful in the examination. That being so, on 30 March 2018, the University informed the applicant she could not be appointed to the permanent post on account of a background security check. 36.     On 29 May 2018 the applicant applied to the Manisa Administrative Court for the University’s decision of 30 March 2018 to be set aside. She submitted that the decision not to employ her as a permanent worker on the basis of a negative background check had been arbitrary since she was already working for the University; that she was not affiliated or linked to any terrorist organisation nor was there any investigation or prosecution against her. 37.     On 13 December 2018 the Manisa Administrative Court dismissed the case on the basis of Article 48 § 8-A of Law no. 657 and related legislation, by noting that the security and archive investigation on the applicant had revealed that she had participated in activities organised by the FETÖ/PYD terrorist organisation; that her father participated in activities organised by persons who supported the FETÖ/PYD terrorist organisation; that her husband had been dismissed from civil service in the context of the emergency legislative decrees pursuant to the 15 July 2016 coup attempt and that for a period of six months in 2011 she had worked in a company which had been shut down on account of its links with the said organisation. The Manisa Administrative Court, collecting information on its own motion from the Manisa Prosecutor’s Office, further found that the applicant had been identified as a person who had frequent telephone conversations between 2013 and 2016 with persons who were currently detained with respect to charges related to the FETÖ/PYD terrorist organisation and that she had been identified by confessors although the administrative court did not give details as to the content of these telephone conversations or the content of the statements given by confessors. 38 .     The applicant appealed against this decision before the İzmir Regional Administrative Court, stating, inter alia , that the accusation that she was linked to the FETÖ/PYD terrorist organisation had been groundless and untrue. On 7 March 2019 the İzmir Regional Administrative Court dismissed her appeal, noting that its decision was amenable to appeal within 30   days before the Supreme Administrative Court. 39.     On 3 July 2019 the Supreme Administrative Court rejected the applicant’s appeal referring to the Section 46 § 6 of the Administrative Procedure Act and by noting that the decision of 7 March 2019 had been final and therefore could not be appealed. 40.     On 4 July 2019 the Manisa public prosecutor issued a decision of non ‑ prosecution in respect of the applicant. He explained that an investigation had started against the applicant on the basis of statements given by confessors and witnesses in the context of ongoing FETÖ/PYD investigations. In those statements the applicant was mentioned as a person, working in the University and as having links with the said organisation. That being so, the prosecutor noted that the applicant’s name was not featured in any ByLock user list, that she had not had a bank account with Bank Asya; that she had not been a member to any association or trade-union affiliated with the said organisation and that there existed no other evidence or information demonstrating her having a link with the said organisation. 41.     On 6 September 2019 the applicant lodged an individual application with the Constitutional Court, indicating the Supreme Administrative Court decision of 3 July 2019 – notified to her on 9 August 2019 –, as the final decision in the course of exhaustion of remedies, with respect to her grievances about not being appointed to civil service on the basis of the background check regulations. 42 .     On 31 December 2019 the Constitutional Court rejected her individual application as belated, noting that it had not been lodged within 30 days of the final domestic decision. 43.     A further objection by the applicant to the effect that she had lodged her application within 30 days of the notification of the Supreme Administrative Court’s decision was rejected by the Constitutional Court on 5   February 2020. Application no. 29101/20 (Agit Tetik) Refusal to appoint the applicant to the position of a technician in the Şırnak State Hospital 44.     On 23 June 2017 the applicant was notified that he would be appointed to the Şırnak State Hospital as a technician in anaesthesiology as a result of him having been successful in a country-wide civil service examination. 45.     On 11 January 2018 the Ministry of Health informed the applicant that he could not be appointed to the said position on account of a negative background check. No other reasons were provided. 46.     On an unspecified date the applicant applied to the Ankara Administrative Court for the Ministry of Health’s decision of 11   January 2018 to be set aside. 47.     In a decision of 24 October 2018 the Ankara Administrative Court dismissed the case on the basis of Article 48 § A - 8 of Law no. 657 after requesting information from the defendant Ministry as to the reasons for providing the applicant with a negative background check. The Court found the impugned decision lawful on the basis of the information submitted by the defendant Ministry, which had been that the applicant had participated in activities organised by YDG-H – the youth wing of the PKK/KCK terrorist organisation, that his brother had surrendered himself to the authorities after cutting his ties with the said organisation, that his father and sister were among persons identified as having participated in activities of the   PKK/KCK and that the applicant himself had been tried for membership of the said organisation but had been acquitted for lack of evidence on 9 January 2018. 48.     The applicant appealed against this decision before the Ankara Regional Administrative Court, submitting that the Ankara Administrative Court’s decision violated the principle of presumption of innocence since that court had accepted the justification of the administration’s refusal to furnish him with a positive background check on the basis of his acquittal which had become final on 17 January 2018 in previous criminal proceedings. Moreover, the administrative court had disregarded the principle of individual criminal responsibility by accepting that the alleged actions of the applicant’s relatives could be a basis for the self-same refusal. The applicant argued that there had been no concrete reasons that related to himself for the negative background check in question. 49.     In a decision of 23 May 2019, the Ankara Regional Administrative Court dismissed the applicant’s appeal without replying to his arguments. 50.     On 16 August 2019 the applicant lodged an individual application with the Constitutional Court, complaining of an infringement with his right to fair trial under Article 6 of the Convention. He submitted that first the administrative authority then the courts had refused his case on account of an offence he had not committed. 51.     On 10 October 2019 the Constitutional Court dismissed the applicant’s individual application by using a summary-formula, noting that there appeared to be no violation of Article 6 in as much as the trial courts’ decisions had not been arbitrary or manifestly unreasonable and that there had been no breach of the principles of equality of arms and adversarial proceedings. Developments after the lodging of the application and applicant’s subsequent appointment to the Şırnak State Hospital 52.     On an unspecified date in 2021 the applicant successfully participated anew in a country-wide civil service examination and he was informed that he would be appointed as a technician in anaesthesiology department of the Şırnak State Hospital. 53.     On 1 March 2021 the Ministry of Health appointed the applicant to that position after granting him with a positive background check and the applicant took up his duties on 21 March 2022. Application no. 42116/20 (Baran Tekin) 54.     On 19 July 2017 the applicant was notified that he would be appointed to a public school as a gym teacher as a result of him having been successful in a country-wide civil service examination. 55 .     On 14 November 2017 the Ministry of Education informed the applicant that he could not be appointed to the said position on the basis of Article   48 § A-5 of Law no. 657. No other reasons were provided. 56.     On 29 May 2017 the applicant applied to the Ankara Administrative Court for the decision of 14 November 2017 to be set aside, submitting that the Ministry had unlawfully applied that provision of the law since Article   48 §   A-5 of Law no. 657 required a person to be convicted of the crimes listed therein to be refused employment in the public service. He noted that he had had no convictions of the kind mentioned in the letter of the law. He went on to add that if the Ministry had refused to confirm him into employment on the basis of an ongoing prosecution against him, this would be in breach of the principle of presumption of innocence. 57 .     In a decision of 26 December 2018 the Ankara Administrative Court, dismissed the case, finding the defendant Ministry’s decision lawful. The court noted in that connection that the applicant was standing trial on charges of membership of the PKK/KCK terrorist organisation and despite those proceedings not having been concluded, the nature and sensitivity of the post in question justified the administration’s decision not to confirm his employment. It referred in this connection to Article 48 § A-8 of Law no.   657 and noted that the information it had sought from the Ministry regarding the applicant’s file demonstrated that the authorities did not consider him as having passed the background assessment. 58.     The applicant lodged an appeal against that decision, submitting that the first-instance court had erred in examining the case on the basis of Article   48 §   A-8 of Law no. 657 whereas the decision of the Ministry had been based explicitly on Article 48 § A-5. Moreover, the first-instance court had sought information on its own motion from the Security Directorate and had not given him a chance to examine and comment on that information before ruling on the case. 59 .     In a decision of 29 May 2018 the Ankara Regional Administrative Court dismissed the applicant’s appeal without responding to his arguments. 60.     On 20 December 2020 the Constitutional Court dismissed as manifestly ill-founded an individual application by the applicant regarding his right to presumption of innocence and to a fair trial. 61.     In their observations the Government informed the Court that the applicant was convicted of membership of a terrorist organisation by a first-instance criminal court on 8 January 2021 and that those proceedings were ongoing before a regional appeal court. Application no. 28956/21 (Mehmet Tanrıkulu) 62.     On 25 July 2017 the Ministry of Health informed the applicant, who had just graduated from the faculty of medicine, that he would be assigned to a State hospital in Diyarbakır in order to complete his compulsory medical service. 63.     On 19 January 2018 the Ministry of Health informed the applicant that he could not be appointed to the said position on the basis of him not fulfilling the conditions as set out in Article 48 § A-8 of Law no. 687. No other reasons were provided. 64.     On 26 February 2018 the applicant applied to the Ankara Administrative Court for the decision of 19 January 2018 to be set aside, submitting that the decision to refuse his appointment did not contain any justification and therefore rendered any judicial review of the compatibility of administration’s actions with the rule of law impossible. 65.     In a decision of 13 December 2018 the Ankara Administrative Court dismissed the case on the basis of Article 48 § 8-A of Law no. 657 and other relevant legislation and by holding that the administration had a wide margin in making appointments into civil service. In that connection, the trial court gave weight to a note issued by the Ministry of Interior where the latter had identified the applicant and his brother as having participated in the activities of YDG-H, a youth branch of the PKK/KCK terrorist organisation, between 2007 and 2009. The note also indicated that the applicant had been arrested in connection with his involvement with that organisation, that during 2016 while he was pursuing studies in the university he had petitioned the university administration along with other students for Kurdish language to be offered as an elective course under the leadership of the organisation Aydın-Der, another youth organisation having connections with the   PKK/KCK. Noting the sensitive and important nature of the public entity in question, the court concluded that the refusal to appoint the applicant on the basis of a negative background check had not been unlawful. 66.     The applicant’s appeal against that decision was dismissed by the Ankara Regional Administrative Court on 8 May 2019. 67.     On 20 December 2020 the Constitutional Court dismissed an individual application by the applicant regarding, inter alia , his right to presumption of innocence and to a fair trial. RELEVANT LEGAL FRAMEWORK AND PRACTICE The Constitution 68.     The right of equal access to the civil service is a constitutional right set out in Article 70 of the Constitution, where it is also stated that no criteria other than the qualifications for the office concerned are to be taken into consideration for such recruitment. 69.     Article 125 of the Constitution provides that all acts and decisions of administrative authorities are amenable to judicial review. Law on Civil servants (law no. 657), LAW on background and Archive checks (Law no. 4045) and secondary legislation 70.     Section 48 (A) of Law no. 657 setting out the general admission conditions for civil service at the relevant time, required candidates for civil service to satisfy, in so far as relevant:   “... 4. Not to have been prohibited from [exercising] public functions or rights, 5. Even if the periods specified in Article 53 of the Criminal Code have lapsed ... not to have been convicted of ... offences against State security ...” 71 .     The requirement to go through background and archive search as a general condition to be employed in civil service was introduced during the state of emergency (see paragraph 6 above) and was added to Section   48 (A)-8   on 1 February 2018, published in the Official Gazette on 8 March 2018. This provision was later struck down as unconstitutional by the Constitutional Court (see paragraph 74 below). 72.     Moreover, law no. 4045 which was, in force from 3 November 1994 until 17 April 2021 required persons who would be employed in any State department that processed or held classified documents, which if obtained by unauthorised persons, could potentially endanger or undermine the security, national existence, integrity or interest of the State to go through security and archive search assessments. This requirement applied automatically to all personnel who would work in the military, police and intelligence services. 73.     Regulation no. 24018 issued by the Cabinet of Ministers on Security Clearance published in the Official Gazette on 12 April 2000 set out the procedure on conducting background checks pursuant to law no.   4045. Accordingly, an archive check would consist of checking whether a person was being searched by the police and whether there was any record of him in police or intelligence files and whether the person had any criminal record or a restriction (section 4 (f)). A background check, in addition to the verification procedure related to the archive check, would consist of assessing that person’s moral character, his ability to keep secrets, his relations with foreigners and whether he has carried out any destructive and separatist action against the state (section 4(g)). The authorities allowed to conduct an archive and background check were the National Intelligence Services, Directorate General of Security of the Police Department and relevant local governor’s offices. Constitutional Court’s judgment of 24 July 2019, Published in the official gazette on 29 november 2019 74 .     Following a request for constitutional review of section 48 (A)-8 of Law no. 657, the Constitutional Court struck down that provision as being unconstitutional on 24 July 2019. It noted that information regarding a person obtained through a security check consisted of personal data within the meaning of the Data Protection Act, falling under the protection of Article   8 of the Convention and as such, the collection, processing and use of such data would have to be accompanied by clear principles and safeguards set out by law. The court acknowledged that legislature had a margin of appreciation to require persons to be employed in civil service to undergo background checks, however it noted that the provision did not contain any guidelines or principles as to scope of the verification, the processing and use of personal data obtained after the security check, and which authorities would be competent to carry out the security check. It concluded that the provision did not meet the “quality of law” principle, and therefore repealed it. Pursuant to the Constitution, repealing effects of a constitutional court’s judgment comes into existence ex nunc – that is, only as of the day on which the judgment is published in the Official Gazette, unless that judgment expressly provides otherwise. 75.     In their observations, the Government noted that the Parliament had passed a new law on Security Investigation and Archive Search (law no.   7315) on 17 April 2021 in accordance with the principles laid down by the Constitutional Court in its above-mentioned ruling of 24 July 2019. Administrative Procedure Act (Law no. 2577) 76.     In administrative court proceedings, the principle of party presentation is not applied as administrative courts are empowered to examine issues not raised by the parties and to collect additional information on their own motion (Article 20 of law no. 2577). 77 .     According to Article 46 of law no. 2577, only certain decisions of the regional administrative courts may be appealed before the Supreme Administrative Court. Contrary to decisions reviewing dismissals from civil service, an administration’s decision not to appoint a person into civil service is not listed among such decisions that are reviewed by the regional appeal courts that may be subject to a further appeal before the Supreme Administrative Court. THE LAW JOINDER OF THE APPLICATIONS 78.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly. notice of derogation 79.     The Government first of all pointed out that the applicants’ complaints should be examined in the light of the Notice of Derogation transmitted to the Secretary General of the Council of Europe on 21 July 2016 under Article   15 of the Convention, which provides:   “1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”   80.     The Government considered that having availed itself of its right of derogation to the Convention pursuant to Article 15, Turkey had not infringed the provisions of that instrument. In that connection it stated that there had been a public emergency threatening the life of the nation on account of the risks arising out of the attempted military coup and that the measures adopted by the national authorities in reaction to that emergency had been rendered strictly necessary by the situation. 81.     The Court notes that in its judgment in the case of Mehmet Hasan Altan v. Turkey (no. 13237/17, § 93, 20 March 2018), it noted that the attempted military coup had revealed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. As to whether the measures taken in the present cases were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicants’ complaints on the merits, and will do so below (see for a similar approach, Pişkin v. Turkey , no. 33399/18, § 59, 15 December 2020).   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 82.     The applicants complained that the administrative proceedings had not complied with the guarantees of a fair trial, including the principles of equality of arms, adversarial proceedings and the right to a reasoned judgment. They submitted that the information and the accusations contained in their background checks had not been disclosed to them, with the result that they were unable to contest their veracity in the course of the administrative proceedings. The applicants in applications nos.   58901/19, 14944/20, 29101/20 and 28956/21 further complained of the arbitrary nature of assessments in their background checks in so far as the conclusions therein had been based on the alleged connections or activities of their close relatives with terrorist organisations and contained no objective assessment in respect of the applicants themselves. Article 6 § 1 of the Convention reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility Compatibility ratione personae in applications nos. 59988/19 and 29101/20 83.     The Government submitted that the applicants, Ms Keskin and Mr   Tetik, had lost their victim status as they had eventually been appointed to the civil service. 84.     The applicants contested the Government’s argument, noting that they had been appointed subsequently to the civil service not as a result of an acknowledgment of their rights being breached in the impugned proceedings but because they had participated in subsequent recruitment procedures. Moreover, they maintained that they had received no compensation for the loss of time. 85.     The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia , Gäfgen v.   Germany [GC], no. 22978/05, § 115, ECHR 2010, and Scordino v.   Italy (no.   1)   [GC], no. 36813/97, § 179, ECHR 2006-V). A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see, inter alia ,   Rooman v. Belgiu m [GC], no. 18052/11, §§   128-133, 31 January 2019). 86.     The Court observes that in the present cases the applicants, Ms   Keskin and Mr Tetik, were ultimately appointed as civil servants only because of the subsequent developments which were unrelated to the impugned proceedings. Furthermore, there has been no acknowledgement of a breach of Article 6 § 1 of the Convention in relation to the impugned proceedings by the domestic authorities. In the absence of any such acknowledgement, the Court considers that the applicants can still claim to be victims of the alleged violation. The Court’s jurisdiction ratione materiae 87.     While the Government have not raised an objection as regards the applicability ratione materiae of Article 6 § 1, the Court considers that it has to address this issue of its own motion (see Grosam v.   the   Czech   Republic [GC], no. 19750/13, §107, 1 June 2023). 88.     The Court reiterates that for Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” (“ contestation ” in French) regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genui