AS TO THE ADMISSIBILITY OF
by Hakkı NAZSIZ and Melis Merve NAZSIZ
The European Court of Human Rights (Second Section), sitting on 26 May 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 15 June 2005,
Having deliberated, decides as follows:
The applicants, Mr Hakkı Nazsız and Ms Melis Merve Nazsız, a father and daughter, are Turkish nationals who were born in 1966 and 1995 respectively and live in Ankara. They are represented before the Court by Mr S. Kuş, Mr A. Şahin and Mr H. Eğri, lawyers practising in Ankara.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant was a public prosecutor when the Ministry of Justice initiated a disciplinary investigation against him on 1 March 2002. He was suspected of forgery and accepting a bribe. The applicant resigned on 2 January 2003, shortly before he was notified of the decision dated 20 November 2002 of the Supreme Council of Judges and Public Prosecutors (“the Supreme Council”), ordering his removal from office. His subsequent appeals to the Supreme Council and an objection before the Objections Board (“İtirazları İnceleme Kurulu”) were rejected on 12 February 2004 and 7 March 2005 respectively.
On 11 December 2002 criminal proceedings were initiated against the first applicant and six others who were allegedly involved in a bribery and forgery incident. On 22 October 2003 the Çankırı Assize Court convicted the applicant as charged. The Court of Cassation quashed the judgment on 22 February 2005. The Çankırı Assize Court issued a new judgment on 12 May 2006 and convicted the applicant again. On 16 May 2007 the Court of Cassation quashed the judgment for the second time. On 24 June 2008 the Çankırı Assize Court convicted the applicant as charged. The applicant appealed and the case is currently pending before the Court of Cassation.
The outcome of the disciplinary investigation, the applicant’s removal from office and the first-instance court’s initial decision were reported in a number of newspapers.
The first applicant complained under Article 6 of the Convention of the unfairness and length of the disciplinary investigation carried out by the Supreme Council. He further asserted that the decisions of the Supreme Council could not be challenged before domestic courts, which was allegedly in breach of Article 13 of the Convention.
The first applicant added under Article 6 of the Convention that the length of the criminal proceedings had been excessive and that he had not been afforded a fair hearing.
The second applicant alleged that the first applicant’s removal from office and his exposure in the media in respect of the disciplinary and criminal proceedings had infringed her right to respect for private and family life, protected by Article 8 of the Convention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
Concerning the first applicant’s complaint about the fairness of the disciplinary proceedings, the Court reiterates that Article 6 is not applicable to disputes involving the recruitment, careers and dismissal of certain categories of civil servants, subject to certain conditions (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ...). The Court observes that the applicant, a public prosecutor at the time, was a civil servant. The subject of the dispute before the Supreme Council was the forgery and bribery allegations during the performance of his duties, an issue related to the exercise of State power. The Court further observes that Turkish law expressly excludes access to a court in respect of Supreme Council decisions, as in the present case (a contrario, Olujić v. Croatia, no. 22330/05, §§ 35-43, 5 February 2009). The first applicant therefore had no overriding right in domestic law.
In the light of the foregoing, the Court finds that this part of the applicant’s complaint falls outside the scope of Article 6 of the Convention. Consequently it must be declared incompatible ratione materiae and rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
Given that Article 13 of the Convention is inapplicable where the main complaint falls outside the scope of the Convention (see Banekovic v. Croatia (dec.), no. 41730/02, 23 September 2004), and in the light of its foregoing conclusion under Article 6 of the Convention, the Court considers that the first applicant’s complaint under Article 13 in relation to the disciplinary proceedings is also to be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to 35 §§ 3 et 4.
As for the first applicant’s complaint regarding the fairness of the criminal proceedings, the Court observes that they are still pending before the Court of Cassation. This part of the first applicant’s complaint under Article 6 is therefore premature. Consequently, it must be rejected pursuant to Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies (see, for example, Koç v. Turkey (dec.), no. 36686/07, 26 February 2008).
Even assuming that the second applicant could claim to be a victim of a violation of the Convention, the Court observes that these complaints have not been brought before the domestic courts. The Court therefore considers that the second applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court
Decides unanimously to adjourn the examination of the first applicant’s complaint concerning the length of criminal proceedings;
Declares by a majority the remainder of the application inadmissible.
Elens-Passos Francoise Tulkens
Deputy Registrar President