EHRM, 02-12-2014, nr. 61960/08

The Government submitted that the applicant had failed to comply with Article 35 of the Convention as she had failed to lodge an action with the administrative or civil courts requesting compensation for the alleged damage caused to her by the conduct of the administrative authorities or civil servants. Alternatively, they submitted that the applicant had failed to lodge her application with the Court within the six-month time-limit.

The applicant maintained that she had exhausted the available domestic remedies. She noted that she had even requested rectification of the Supreme Administrative Court's decisions, even though that was not obligatory under Turkish law.

As regards the Government's objection that the applicant had failed to exhaust domestic remedies, the Court notes that her claims concern her inability to take up her duties and, subsequently, her dismissal from public employment. It observes in this connection that she brought and pursued an action for the annulment of the administrative authorities' decisions before the administrative courts and asked for her financial loss to be compensated. The Court therefore considers that the applicant brought her grievances under the Convention to the attention of the appropriate judicial authorities in domestic law. Moreover, the Government have not demonstrated how an action for compensation before administrative or civil courts would provide redress for the applicant's grievances. Nor did they provide any example in which an action for compensation before such courts had been successful in situations similar to that of the applicant. The Court accordingly rejects the Government's objection under this head.

As to the Government's objection regarding the six-month rule, the Court observes that the final domestic decision was rendered on 17 September 2008 and the application was lodged on 1 December 2008. The Court therefore considers that the present application was introduced in conformity with the six-month time-limit and rejects the Government's objection.

The Government submitted that neither Article 8 nor Article 14 was applicable in the instant case as it concerned a right which was not secured by the Convention, namely the right to recruitment as a public servant. Referring to the judgments of Glasenapp v. Germany (28 August 1986, Series A no. 104), Kosiek v. Germany (28 August 1986, Series A no. 105) and Thlimmenos v. Greece ([GC], no. 34369/97, ECHR 2000-IV), the Government maintained that the refusal to appoint a person as a public servant could not as such provide the basis for a complaint under the Convention. They also maintained that the applicant would be able to obtain public-service employment as long as she fulfilled the requirements of another post.

The applicant maintained, in reply, that the domestic authorities had accepted her candidature for the post of security officer in the Batman branch of TEDAŞ and had appointed her to the post even though it was known to them that she was a woman. Besides, she had worked as a security officer in TEDAŞ between 11 July 2001 and 17 March 2004 and had subsequently been dismissed from her post. She lastly alleged that she had lost the opportunity to take up other posts in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions.

The Court reiterates that Article 14 of the Convention protects individuals in similar situations from being treated differently without justification in the enjoyment of their Convention rights and freedoms. This provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos, cited above, § 40, and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38, ECHR 2004-VIII). The Court should therefore establish whether the facts of the case fall within the ambit of Article 8 of the Convention, in order to rule on the applicability of Article 14.

In this connection, the Court reiterates that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention (see Vogt v. Germany, 26 September 1995, § 43, Series A no. 323, and Otto v. Germany (dec.), no. 27574/02, 24 November 2005).

The Court considers, however, that the issue to be examined in the present case is not whether the applicant had a right to be recruited to the civil service. The applicant did not complain about the refusal of the domestic authorities to appoint her as a civil servant as such. She, for example, did not complain about her failure to become a civil servant on the ground that she did not possess the necessary qualifications required of anyone seeking such a post. Her submissions under this head concerned the difference in treatment to which she had been subjected on the ground of her sex (compare Glasenapp v. Germany, 28 August 1986, § 52, Series A no. 104; and Kosiek v. Germany, 28 August 1986, § 38, Series A no. 105). Besides, the applicant succeeded in the examination in order to become a public servant and was notified that she would take up the post of security officer in the Batman branch of TEDAŞ by the State Personnel Department attached to the Prime Minister's office, before the Batman branch of TEDAŞ refused to recruit her (see paragraph 5 above). What is more, subsequent to the judgment of the Ankara Administrative Court of 27 February 2001, she was given the post of security officer on a contractual basis on 11 July 2001 and worked in the Batman and Elazığ branches of TEDAŞ until 17 March 2004 (see paragraphs 11 and 16 above). In these circumstances, in the Court's view, the applicant should be regarded as an official who was appointed to the civil service and subsequently dismissed.

The Court has consistently held that a person who has been appointed as a civil servant can complain of being dismissed if that dismissal violates one of his or her rights under the Convention, including Article 8. Civil servants do not fall outside the scope of the Convention (see Glasenapp, cited above, § 49; Kosiek, cited above, § 35; Vogt, cited above, § 43; and Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII). With regard to Article 8, the Court has already held in a number of cases that the dismissal from office of a civil servant constituted an interference with the right to private life (see Özpınar v. Turkey, no. 20999/04, §§ 43–48, 19 October 2010; and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165–167, 9 January 2013).

Turning back to the circumstances of the present case, the Court reiterates that the administrative authorities dismissed the applicant from her post in 2004 on the ground of her sex. In the Court's view, the concept of ‘private life’ extends to aspects relating to personal identity and a person's sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person's identity, self-perception and self-respect and, as a result, his or her private life. The Court therefore considers that the applicant's dismissal on the sole ground of her sex constituted an interference with her right to respect for her private life (see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999-VI). Besides, the applicant's dismissal had an impact on her ‘inner circle’ as the loss of her job must have had tangible consequences for the material well-being of her and her family (see Oleksandr Volkov, cited above, § 166). The applicant must also have suffered distress and anxiety on account of the loss of her post. What is more, the applicant's dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications (see Sidabras and Džiautas, cited above, § 48; Oleksandr Volkov, cited above, § 166; and İhsan Ay, cited above, § 31). Thus, the Court considers that Article 8 is applicable to the applicant's complaint.

Finally, the applicant alleged that she had lost the opportunity to take up other positions in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions, whereas the Government denied the veracity of this claim, both parties failing to substantiate their arguments. The Court does not consider it necessary to rule on this claim. In the Court's view, even assuming that the applicant was able to take up another job in the public sector, as claimed by the Government, this would not suffice to erase the alleged detrimental effect of her dismissal on grounds of sex and the ensuing judicial proceedings on her private life (see, mutatis mutandis, I.B. v. Greece, no. 552/10, § 72, ECHR 2013).

In the light of the foregoing, the Court considers that Article 14 of the Convention is applicable in the circumstances of this case, taken in conjunction with Article 8, and rejects the Government's objection.

The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government submitted that Article 6 was not applicable in the instant case as the administrative decisions concerning the applicant fell within the sphere of public law.

The applicant did not make any submission on this issue.

The Court notes at the outset that it will examine the Government's objection under this head in the light of the principles set out in the judgment Vilho Eskelinen and Others v. Finland [GC] (no. 63235/00, §§ 40–64, ECHR 2007-II). In this connection, the Court observes that it is not disputed that the applicant had a right, according to the domestic law, to apply for the post of security officer and that there was a genuine and serious ‘dispute’ (‘contestation’ in the French text) within the meaning of Article 6 § 1. The Court further observes that the applicant clearly had access to a court in order to challenge the lawfulness of her dismissal from the post of security officer. As a result, the applicant had the right to challenge before the domestic courts the administrative decisions. The domestic courts examined the merits of the applicant's appeals and in so doing they determined the dispute over her rights. The Court therefore finds that Article 6 of the Convention is applicable to the present case and rejects the Government's objection (see, mutatis mutandis, Vilho Eskelinen and Others, cited above, §§ 61–62; Lombardi Vallauri v. Italy, no. 39128/05, § 62, 20 October 2009; Eero Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010; and Juričić v. Croatia, no. 58222/09, §§ 53–56, 26 July 2011).

The Court notes that a new domestic remedy was established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, as a new domestic remedy could have been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

The Court further points out that, in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could pursue the examination of applications of this type of which notice had already been given to the Government. It notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. In the light of the above, the Court decides to pursue the examination of the present application (see Rifat Demir v. Turkey, no. 24267/07, §§ 34–36, 4 June 2013).

The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government contended that the length of the proceedings could not be considered unreasonable in view of the complexity of the case and the conduct of the parties.

The applicant reiterated her claim.

The Court observes that the period to be taken into consideration began on 18 September 2000 and ended on 17 September 2008. It thus lasted eight years for two levels of jurisdiction and the case was pending before the Supreme Administrative Court for approximately seven years and three months out of this total period.

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues that are similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and İhsan Ay, cited above, § 48). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the ‘reasonable time’ requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention.

The Government maintained that the applicant had been able to submit her arguments to the domestic courts and that all decisions taken in the proceedings had contained extensive reasoning. They contended that there was nothing in the case file to show that the proceedings brought by the applicant had been unfair.

The applicant maintained, in reply, that the Twelfth Division of the Supreme Administrative Court had failed to take into consideration the decision rendered by the Supreme Administrative Court's General Assembly of Administrative Proceedings Divisions in favour of R.B. and that, as a result, the highest court had given contradictory decisions in respect of two persons in the same situation.

The Court reiterates at the outset that conflicting decisions in similar cases heard in the same court which, in addition, is the court of last instance in the matter may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, § 30, 25 April 2013, and the cases cited therein). In the Iordan Iordanov and Others case, the Court identified the issues that needed to be assessed when analysing whether conflicting decisions in similar cases stemming from the same court violated the principle of legal certainty under Article 6 of the Convention:

Consequently, the Contracting States had an obligation to organise their legal system so as to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011).

In the present case, the Court notes that, in support of her claims under this head, the applicant submitted only one decision rendered by the Supreme Administrative Court's General Assembly of Administrative Proceedings Divisions in favour of R.B., who had also been refused a post of security officer in the Batman branch of TEDAŞ on grounds of sex. While it is true that the Twelfth Division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions reached different conclusions in seemingly identical cases, it cannot be said that there were ‘profound and long-standing differences’ in the case-law of the Supreme Administrative Court. The Court further notes that, although it is not directly accessible to plaintiffs, according to Article 39 of the Supreme Administrative Court Act (Law no. 2575), in cases where there is inconsistency between a decision of a division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions, the Assembly for the Unification of Conflicting Case-Law renders a legally binding decision settling the conflict of case-law. Taking these aspects into consideration, the Court finds no reason to further examine whether the aforementioned provision for overcoming the judicial inconsistencies could have been applied in the instant case and to what effect (see, mutatis mutandis, Arişanu v. Romania (dec.), no. 17436/09, 28 January 2014). In these circumstances and bearing in mind that it is not the Court's function to compare different decisions of national courts, even if given in similar proceedings, the Court considers that the difference of interpretation between the Twelfth Division and the General Assembly of Administrative Proceedings Divisions does not, in itself, constitute a violation of Article 6 of the Convention.

The Court, however, reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower Court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; and Stepanyan v. Armenia, no. 45081/04, § 35, 27 October 2009).

The Court notes that it is not in dispute between the parties that, in her appeal, the applicant drew the attention of the Twelfth Division of the Supreme Administrative Court to the case brought by R.B. (see paragraph 21 above). Moreover, in its decision dated 12 February 2008, the Twelfth Division cited the text of the decision rendered by the General Assembly of Administrative Proceedings Divisions on 6 December 2007 with regard to R.B. (see paragraph 23 above). The Twelfth Division of the Supreme Administrative Court, however, did not consider the applicant's submissions or the decision of 6 December 2007 and simply endorsed the Ankara Administrative Court's judgment. Although such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case, it failed to satisfy the requirements of a fair hearing. Following the administrative Court's judgment and prior to the examination of the applicant's appeal, the General Assembly of Administrative Proceedings Divisions had rendered a decision which was in conflict with the administrative Court's judgment. In the Court's opinion, under those circumstances, the applicant's submissions regarding the case of R.B. required an adequate response by the Twelfth Division. In addition, the applicant's request for rectification of the decision containing an explicit reference to the decision of 6 December 2007 was also dismissed by the Twelfth Division without any reasoning (see paragraph 25 above). The Court therefore considers that the Twelfth Division of the Supreme Administrative Court failed to fulfil its duty to provide adequate reasoning for its decisions.

There has accordingly been a violation of Article 6 § 1 of the Convention.