CASE OF FAZLI ASLANER v. TURKEY [Extracts]
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić
5. The applicant was born in 1963 and lives in Ankara. 6. In 1993 the applicant, who was a court registrar (zabıt kâtibi) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar (yazı işleri müdürü) at the Ankara State Security Court. However, since his ranking (15th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court. 7. On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court. 8. The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court (“the Administrative Court”). 9. By a judgment of 17 September 1998 the Administrative Court upheld the applicant’s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities’ refusal had had no basis in law. 10. The Ministry of Justice appealed on points of law against that judgment. 6. As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment. 7. On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court (“the Fifth Division”) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field. 8. The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç. 9. On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met. 10. On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court (ısrar kararı). 11. Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu; “the General Assembly”) owing to the resistance of the court of first instance. 12. On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty-two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice-President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division’s judgment of 20 December 2000. 13. On an unspecified date the applicant submitted a request for rectification of the General Assembly’s judgment. 14. On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case.