CEDH · CASELAW;CLIN;ENG — 4 mars 2014

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Turkey - 36073/04 Judgment 4.3.2014 [Section II] Article 6 Administrative proceedings Article 6-1 Impartial tribunal Hearing of successive appeals on points of law by bench including same three judges: violation Facts – In 1993 the applicant, who had successfully sat a competition for the post of head registrar in the State Security Court, was unable to obtain that post on account of his ranking. In 1997 he applied for another post, but, given the authorities’ refusal to appoint him, he sought judicial review before the administrative court, which granted his claim. The Ministry of Justice lodged an appeal on points of law against that judgment. In December 2000 the fifth administrative division of the Supreme Administrative Court quashed the impugned judgment. In March 2002 the same division dismissed an application by the applicant for rectification of the judgment. Following a new appeal on points of law by the authorities, the case was assigned ex   officio to the general assembly of the administrative proceedings divisions of the Supreme Administrative Court. In January 2003 that assembly quashed the administrative court’s judgment. Three judges who had been involved in examining the application for rectification of the judgment in the fifth division’s decision of December 2000 were on the 31‑judge bench. In December 2003 the general assembly of administrative proceedings divisions dismissed the application. Law – Article 6 § 1: The applicant’s fears that the general assembly was not impartial stemmed from the fact that three of the judges on that bench had previously been involved in examining the first appeal on points of law. The Court was required to decide whether, having regard to the nature and scope of the judicial review which the general assembly of administrative proceedings divisions was required to conduct, the three judges in question had displayed or could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits. During the first appeal on points of law, the issue examined by the fifth division of the Supreme Administrative Court had been to determine whether the administrative court judgment which held that the authorities were bound by the competition ranking, even with regard to appointments in other judicial districts, had complied with the law. Yet three of the 31   judges who sat in the general assembly of administrative proceedings divisions had previously sat on that bench of the fifth division, and those three judges had therefore participated, in the same case, in a decision concerning the question which they were required to examine. In consequence, they could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits of the second appeal on points of law. However, the fact that certain judges had previously formed an opinion did not in itself suffice to conclude that the impartiality of the general assembly of administrative divisions had been affected. Equally, the Court considered in the instant case that the number or (relatively low) proportion of judges concerned by the issue of objective impartiality was not decisive, and that quantitative considerations did not have an impact on examination of the case, give that there had existed no serious ground rendering absolutely necessary the participation of the three judges in question on the bench with voting capacity. In addition, one of the three judges, in her capacity as deputy president of the Supreme Administrative Court, had presided over the assembly of administrative divisions, and had accordingly led the discussions during the deliberations, which amounted to an additional circumstance undermining the appearance of impartiality. Those two factors were such as to render objectively justified the applicant’s fears concerning the objective impartiality of the assembly of administrative divisions as it had been composed in this case. Conclusion : violation (four votes to three). Article 41: EUR 6,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes