Adverse transfer of judge. Inability to appeal to a court regarding the transfer. Violation of the right of access to court
JUDGMENT
Bilgen v. Turkey 09.03.2021 (app. no 1571/07)
SUMMARY
Transfer of a judge. Adverse transfers are important for a judge’s career. Absence of judicial control regarding the transfer. Access to court.
A senior judge was transferred, without his consent, from the Ankara Regional Administrative Court to another court in a lower judicial district. The transfer took place following a decision of the Supreme Council of Judges and Prosecutors, which had no reason and could not be subject to judicial review, as it was not provided for in administrative courts against the transfer decision.
The ECtHR found, given the special role of the judiciary and the importance of the separation of powers, that the exclusion of members of the judiciary from Article 6 guarantees in matters relating to their working conditions could not be justified for objective reasons in favor of the state interest.
The ECtHR held that the applicant’s refusal of access to a court for an important matter of his career, such as his unfavorable transfer, had not pursued a legitimate aim and could potentially undermine the judicial independence. It stressed, among other things, the international concern about the lack of a mechanism to control the transfer of judges to Turkey.
The ECtHR found a violation of the right to a fair trial (Article 6 § 1 of the ECHR) and awarded an amount of 12,500 euros for non-pecuniary damage and 8,000 euros for court costs.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Hüseyin Cahit Bilgen, is a Turkish national who was born in 1952 and lives in Ankara.
In 1979 the applicant was appointed as an apprentice rapporteur judge at the Supreme Administrative Court. Following a varied judicial career, the applicant became presiding judge in the Eighth Division of the Ankara Administrative Court in 1998. In 2005 he was assigned as a judge to the
Ankara Regional Administrative Court by a decree of the High Council of Judges and Prosecutors
(HSYK) without his consent. An objection by him was rejected by the Objections Board in a decision
that could not be appealed against to the ordinary courts. In 2006 he was transferred to the Sivas
Regional Administrative Court. The latter was a lower category court than where he had previously
held office. No reasons were given.
The Government submitted an appraisal of the applicant’s professional performance carried out in
2005, in which he had been given an “average” rating and it had been stated that it “… would be
appropriate to remove him from the post of president and relocate him to a court other than
Ankara”. The applicant submitted that on account of that appraisal he had been denied a pay rise.
On 27 July 2006 the applicant applied for a review of the decision to move him to the Sivas court to
the HSYK. He argued that the decisions had been taken without his consent, impinging on his judicial
independence and damaging his professional reputation. Given Sivas was 440 km from his home, his
assignment there had interfered with his right to respect for family life. In reply, the Ministry of
Justice stated only that the moves had been on the basis of the needs of the service. That decision
could not be appealed against to the ordinary courts.
In 2007 the applicant applied to the Ministry for disclosure of the reasons for his “average” rating.
The Ministry replied that the appraisal forms were classified and did not fall under the Right to
Information Act. Also in 2007, following an application by the applicant, the Justice Inspection Board
stated that he had been informed of his rating and was given a list of recommendations for
improvement to which he had not objected at the time.
Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicant complained of his having been denied the possibility of judicial review of the dismissal of
his application for review of the decision to transfer him to the court in Sivas
THE DECISION OF THE COURT…
The Court reiterated that the right of access to a court was not absolute and could be limited in law
where the aim was legitimate and the limitation proportionate. The Court also stressed the
importance of separation of powers and the independence of the judiciary.
The Court noted that the legal framework in Turkey did not provide judges with a geographical
guarantee. That being so, it considered that the provisions of the Turkish Constitution and the
relevant domestic provisions guaranteeing judicial independence in Turkey had provided the
applicant, who had been a judge at the time, with a right to protection from arbitrary transfer. The
Court considered that it could refer to international norms of judicial independence in interpreting
the existence of a right at the domestic level. Lastly, the Court held that the right in question was
civil. The Court reiterated that in principle, disputes between civil servants and the State fell within
the scope of Article 6 of the Convention unless two conditions were met, as set out in Vilho Eskelinen
and Others.
The conditions were that legislation expressly excluded access to a court to resolve the
dispute and the exclusion was justified on objective grounds in the State’s interest.
Even though in the present case the relevant legislation had expressly excluded access to a court,
the Court found, in the light of the special role of the judiciary and the importance of separation of
powers, that excluding members of the judicial class from the guarantees of Article 6 in matters
concerning the conditions of their employment could not be justified on objective grounds in the
State’s interest.
The Court noted that the decision to transfer the applicant had not been reviewed, nor had it been
open to review, by an ordinary tribunal or other body exercising judicial powers, pursuant to the
Constitution. The lack of judicial review had thus been lawful. The Court had to decide if the lack of
judicial review of the judicial-transfer decisions had been Convention-compliant.
The Court reiterated the importance of judicial independence and procedural safeguards to protect
that independence concerning decisions affecting the career of a judge. It noted, among other
things, the international concern about the improper use of the transfer mechanism against judges in Turkey. Ultimately, what was at stake was trust in the judiciary and personal independence of judges. The Court concluded that the applicant’s lack of access to a court had not pursued a
legitimate aim.
There had thus been a violation of Article 6 § 1 of the Convention.
Just satisfaction (Article 41)
The Court held that Turkey was to pay the applicant 12,500 euros (EUR) in respect of non-pecuniary
damage and EUR 8,000 in respect of costs and expenses.
