Individual Application

The Facts

The applicant, holding office as a member judge in the tax court, was dismissed from his office by the Plenary of the High Council of Judges and Prosecutors (HCJP) (as it was formerly known) under Decree-Law no. 667. The applicant’s challenge against this decision for re-examination and the action for annulment of his dismissal were rejected.

The applicant brought an action against the Ministry of Justice, requesting the payment of half of his salary accrued during his suspension from office between October and November 2016, along with the legal interest, pursuant to Article 74 of Law no. 2802 on Judges and Prosecutors. The Administrative Court dismissed his claim, which the applicant subsequently appealed. The appeal was also rejected by the regional administrative court.

The Applicants’ Allegations

The applicant maintained that his right to property had been violated due to the refusal to grant him the salary which had accrued during the period between his dismissal from office and the rejection of his request for re-examination. The applicant further claimed that his right to access to a court had also been violated due to the award of litigation costs and counsel’s fees against him.

The Court’s Assessment

1. Alleged Violation of the Right to Property

Although the Plenary of HCJP’s decision to dismiss the applicant allowed for a request for re-examination within ten days of dismissal, Decree-Law no. 667 lacks a specific regulation regarding the exact finalisation date of the decision or the effective date of the provisions and consequences thereof. In the present case, dismissal from office, laid down in Article 3 of Decree-Law no. 667, differs from sanctions for criminal or disciplinary offences. The impugned dismissal from office is considered to be an extraordinary measure of a permanent nature, with definitive consequences, aimed at eliminating the presence of other structures deemed as a terrorist organisation and structures engaging in foreign intelligence activities against national security in public institutions and organisations. The case-law of the Council of State and the administrative regional court is consistent on this matter. Accordingly, judges and prosecutors dismissed pursuant to Decree-Law no. 685 and Article 3 of Decree-Law no. 667 may seek judicial remedies under Article 11 of Decree-Law no. 685 against the decisions of dismissals. In this regard, it has been clarified that the sanction of dismissal from office, which is subject to appeal under Article 33 of the Law no. 6087, and the measure of dismissal from office under the Decree-Law no. 667 differ from each other. The Constitutional Court has found inadmissible the applications concerning the alleged violation of constitutional rights due to the dismissal of judges and prosecutors on the grounds that the applicants failed to exhaust the remedy of the Council of State pursuant to Article 11 of the Decree-Law no. 685. It has accordingly been concluded that there was no explicit or manifest error of appreciation in the trial courts’ assessment that the finalisation of the proceeding in question in the nature of an extraordinary measure was not sought for the consequences thereof to be effective.

In the present case, the applicant’s dismissal was part of an extraordinary measure prescribed by Decree-Law no. 667. It has been understood that the impugned decision bore immediate legal consequences contrary to the sanctions imposed for the commission of a criminal or disciplinary offence. In this respect, it has been concluded that the applicant had no legitimate expectation, based on legal grounds, of acquiring a property or a property safeguarded under Article 35 of the Constitution concerning the salary allegedly accrued during the period between his dismissal and the rejection of his request for re-examination.

Consequently, the Court has declared inadmissible this part of the application for being incompatible ratione materiae.

2. Alleged Violation of the Right to Access to Court

Certain obligations may be imposed on the applicants to mitigate the influx of unwarranted cases and ensure the timely resolution of disputes by the courts without placing an unnecessary burden on them; it is within the margin of appreciation of the public authorities to determine the scope of these obligations. Such obligations do not infringe upon the right to access to a court unless they make it impracticable to initiate legal proceedings or render the process unduly burdensome. Accordingly, the requirement for applicants to bear litigation costs and counsel’s fees if a decision to their detriment is delivered, must be evaluated within this framework.

Nevertheless, the possible obligation for the plaintiff party to pay the other party's litigation costs or counsel’s fees calculated based on the referred amount in the case of a decision detrimental to the plaintiff party could, under certain circumstances, deter individuals from pursuing legal action or render the remedy ineffective. It is therefore essential that the assessment of fees takes into account the fact that the reasonability and proportionality of the fees constitute the minimum threshold for the right to access to a court. In the present case, the applicant claimed that the total awarded amount of TRY 1,250, including the litigation costs and counsel’s fees, had imposed an excessive burden on him. However, it has been assessed that the contested amount did not prevent him from bringing an action or render the legal remedy ineffective.

Consequently, the Court has declared inadmissible this part of the application for being manifestly ill-founded.