Dismissal as a security guard on account of sex is discriminatory and absence of adequate reasoning by a court of final instance may constitute a violation
Hülya Ebru Demirel v. Turkey 19.06.2018 (no. 30733/08)
The case concerned the applicant’s allegation of sexual discrimination because she was denied a job as a security officer at a state-run regional electricity distribution company.
The applicant complained that the decisions of the administrative authorities and the courts constituted sex discrimination. She also complained that the domestic courts had delivered contradictory decisions in identical cases and that the Supreme Administrative Court had failed to examine her submissions.
The Court found in particular that the decisions of the domestic authorities had amounted to a discriminatory difference in treatment as they had not provided any reasons other than the applicant’s sex for her not having been appointed to the post in question. It concluded further that the Supreme Administrative Court had failed to fulfil its obligation to provide adequate reasoning for dismissing the applicant’s rectification request since her arguments concerning the prohibition of discrimination between men and woman had not been reviewed at any stage before the courts.
Article 6 § 1
The applicant, Hülya Ebru Demirel, is a Turkish national who was born in 1976 and lives in Kilis (Turkey).
In October 1999 the applicant passed a civil service exam and was informed that she would be appointed as a security officer at the Kilis branch of the Turkish Electricity Distribution company.
However, the company refused to appoint her as she was not a man who had completed military service.
The applicant initially won a discrimination court case against the company in 2001 but that decision was overturned on appeal by the Supreme Administrative Court in December 2002.
Ms Demirel’s further appeals (including a request for rectification) were all unsuccessful, with the final decision being handed down in June 2009 by the Twelfth Division of the Supreme Administrative Court. That court did not follow an earlier ruling in another case decided by the General Assembly of Administrative Proceedings Divisions of the Supreme Administrative Court, which had found that a woman had been discriminated against in circumstances similar to those of the applicant.
THE DECISION OF COURT
Article 14 in conjunction with Article 8
The Court reiterated that it had already set out detailed reasons for justifying a difference of
treatment in Emel Boyraz v. Turkey.
It considered that the domestic authorities did not give any reasons other than Ms Demirel’s sex for her not having been appointed as a security officer in Kilis and her case was identical in that regard to Emel Boyraz. Accordingly, the Court found that there had been a violation of Article 14 taken in conjunction with Article 8 since the decisions of the national authorities had amounted to a discriminatory difference in treatment.
Article 6 § 1
The Court observed that conflicting decisions in similar cases heard in the same court which, additionally, was the court of last instance, might breach the principle of a fair trial. However, it considered that the existing difference of interpretation between the Twelfth Division and the General Assembly of Administrative Proceedings Divisions of the Supreme Administrative Court did not amount to “profound and long-lasting divergences” in the relevant case-law. Therefore, the situation complained of on this account did not, in itself, constitute a violation of Article 6 § 1.
Regarding the complaint that the Supreme Administrative Court had failed to examine Ms Demirel’s submissions concerning the prohibition of discrimination between women and men, the Court firstly emphasised that its assessment was limited to examining whether the national court’s reasoning in the circumstances of the case had complied with the requirements of Article 6 § 1. It did not consider it necessary to determine whether Article 6 § 1 imposed an obligation on a court of last instance to reconsider an issue in the light of the subsequent case-law of a higher judicial authority.
The Court then reiterated that very limited reasoning might satisfy the requirements of a fair hearing, if a high court refused to accept a case on the basis that the legal grounds had not been made out. Nevertheless, the requirements to give more detailed reasons could also apply to courts of appeal in certain circumstances.
Turning to Ms Demirel’s case, the Court observed that her submissions for rectification had included the fact that a similar case had been decided by the General Assembly with an outcome different from the one before the Twelfth Division and that, furthermore, the latter’s decision had run contrary to the prohibition of sexual discrimination and her Convention right to a fair trial.
Since those arguments had not been addressed by the Twelfth Division in its previous decision, Ms Demirel could reasonably have expected a specific reply. The Court concluded that it had been the sole opportunity for the Twelfth Division to differentiate the case of Ms Demirel from that of the other ruling before her case had become final. Thus, in the circumstances of the case, the Twelfth Division of the Supreme Administrative Court had failed to fulfil its obligation to provide adequate reasoning for dismissing Ms Demirel’s request. The Court held that there had accordingly been a violation of Article 6 § 1.
Just satisfaction (Article 41)
The Court held that Turkey was to pay the applicant 11,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
Judges Spano and Kjølbro expressed a joint partly dissenting opinion. They held that they were not persuaded that in the circumstances of this case, the absence of further reasoning regarding the opposite conclusions reached by the Supreme Administrative Court’s General Assembly and the Twelfth Division in itself rendered the proceedings unfair.
This opinion is annexed to the judgment(echrcaselaw.com editing).