1. The Summary of the Decision and the Application:
1.1. In its decision in the case of Zihni v. Turkey, the European Court of Human Rights has unanimously declared the application inadmissible which presents great importance for many individuals dismissed from their duty by the emergency legislative decree no.672.
1.2. In its decision, in summary, the Court rejected the application for non-exhaustion of domestic remedies.
1.3. The Court noted in its decision that Mr Zihni had an obligation to make use of the domestic judicial remedies available to him under Turkish law, namely an administrative action and an individual appeal to the Constitutional Court.
1.4. The court noted that in its judgment of 4 November 2016, the Supreme Administrative Court had examined an application for judicial review lodged by a judge who had been dismissed following a decision issued by the High Council of Judges and Public Prosecutors under emergency legislative decree no.667 and found that the Supreme Administrative Court did not have jurisdiction to examine that application, but it was primarily for the administrative courts to examine such applications. Attributing this decision, the Court stated in its decision that despite the judicial remedy of administrative action was appealable to the applicant, he had not shown in his application that it was not an effective remedy in order to assert his rights (para. 24).
1.5. In case of individual appeal to the Constitutional Court, the Court stated that the rejection of the appeal by the Constitutional Court on the issue that CHP, main opposition party, challenged the emergency legislative decrees, had not absolved the individuals from the obligation of exhausting the remedy of individual appeal. So, the Court noted that it should have been shown that at the relevant time the remedy of an individual application, like that of an administrative action, had not been accessible in practice to Mr Zihni. However, because of the reason that Mr. Zihni could not be able to present the reasons why both remedies, an administrative action and also the individual appeal did not offer any chance of success in his application, the court dismissed the complaint of him for failure of non-exhaustion of domestic remedies.
1.6. While being the rejection of the Court decision based on the above-mentioned reasons, the applicant apperantly lodged his application with the following two main complaints:
1.6.1. No remedy was available to examine the emergency legislative decrees for constitutional and judicial rewiev in Turkish law.
1.6.2. Because of the reason that two members of the Constitutional Court had been dismissed, in such a context, the Constitutional Court was not in a position to reach a decision impartially.
On the light of two complaints above, relying on there was no effective remedy in domestic law, the applicant lodged his application directly with the ECHR.
1.7. As to be understood, the applicant could not be able to show in the application that both two remedies, administrative action and individdual appeal, were not effective and accessible in law and also in practice.
1.8. On the other hand, as stated in the decision of ECHR, the applicant is obliged to exhaust the domestic remedies which are effective only in law and in practive at the relevant time of the application in terms of his/her each complaint, put forward by him/her (para 22 and 23).
2.The Issue on Whether The Administrative Action is An Effective Remedy or Not
2.1. Firstly, it should have been complained in the application that the administrative judicial bodies, both the Supreme Administrative Court and ordinary administrative courts, had no jurisdiction to examine the emergency legislative decrees for judicial rewiev, so this way of domestic remedy is not effective in law. Moreover, one more complaint also should have been stated by the applicant that the administrative judicial bodies had already rejected such applications; on the one side, administrative courts rejected such applications with the justification of “non-existence of an adminisrative act ” just like the decision of 8 September 2016, rendered by the Province of Trabzon Administrative Court; on the other side, in its judgement of 4 April 2016, the Supreme Administrative Court also dismissed the complaint of the applicant, dismissed from his/her duty by the legislative decree no.662, (application no.2014/1845E, 2016/1931K) with the justification of “non-existence of an administrative act which can be subjected to the judicial review of administrative judicial bodies.
2.2. As to be understood, for those who were dismissed from their duty by the emergency legislative decrees, there is no access to this remedy, an administrative action, not only in law but also in practice. Furthermore, the violation of many fundemental rights is originating from the emergency legislative decree itself. Unless the emergency legislative decree is annuled, the violation of the basic procedural rights, notably as the presumption of the innocence, legal certainity, right to a fair trial, individual criminal responsibility, right to an appeal, right to be effectively defended by a lawyer will be continuing as a regular practice. However, both the Supreme Administrative Court and the ordinary administrative courts have no jurisdiction to examine the emergency legislative decrees for the judicial rewiev. All these complaints should have been stated in the application by the applicant.
2.3. Moreover, being attributed by ECHR in its decision, the Supreme Aministrative Court decision of 4 November 2016, examined for judicial review lodged by a judge who had been dismissed following a decision issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667 is not a suitable example for the case of Zihni v. Turkey;
2.3.1.Because, the judges and the prosecutors were dismissed following a decision issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667. However, in the case of Mr. Zihni, the dismissal measure is directly commanded by the decre law itself (in the form of “lists” appended to the decree laws), without acting any administrative transaction. Because of this reason, at the relevant time Mr Zihni did not have effective access to this remedy, an administrative action, due to the reasons mentioned in 2.1 and 2.2.
2.3.2.On the other side, although it seems that the judges and prosecutors have an effective remedy of administrative action for judicial review of dismissal decisions issued by the Supreme Council of Judges and Public Prosecutors under emergency legislative decree no. 667, actually this remedy is not effective also for the judges and prosecutors due to the reason that the Supreme Council had issued the mass dismisssal decisions being based on the emergency legislative decrees. Likewise, the deputy chairman of HCJP, Mehmet Yılmaz, declared in his press release that unless the emergency legislative decrees enacted, they could not be able to dismiss thousands of judges and prosecutors. In other words, it is necessary to consider the mass dismissals of the judges and prosecutors are directly based on the emergency legislative decrees, so, the adminisrative action is not effective remedy also for the members of the judiciary to assert their rights.
3. The Issue on Whether the Individual Appeal is an Effective Remedy or Not
3.1. In respect to the individual appeal to Constitutional Court, it is considered necessary to emphasize the applicant does not have an effective access to this remedy due to the following justifications.
3.2. The applicant should have complained that as the Constitutional Court had no jurisdiction to examine the emergency legislative decrees for constitutional rewiev, the remedy of individual appeal was not an effective remedy in law and it had a decision in line with this issue so as to be ineffective also in practise. In accordance withthe § 3 of Article 45 of Law no. 6216 (On establishment and rules of procedure of the Constitutional Court), it is impossible to lodge an individual appeal against the legislative acts and regulatory administrative acts. After stating the ineffectiveness of this remedy in law in the application, it should have been also complained that this remedy was not effective in practice, attributing the decision of the Constitutional Court dated 30/11/2016, in which it declared itself incompetent to examine the constitutiality of the emergency decree laws. In its mentioned judgement (application no. 2014/4233), the Constitutional Court rejected the application of all rapporteur judges expiring with the term of office by the law enacted on 27 February 2014 with the the justification that it did not have a jurisdiction to examine it, otherwise, it became violated the main principle of the separation of the powers, moreover, it would be contrary to the § 3 of Article 45 of Law no. 6216.
3.3. In the present case the violation of the rights of the applicant is originating from the emergency legislative decree itself. Due to the fact that legislative decree has a charasteristics of law and the legislative acts are not subjected to the individual appeal to the Constitutional Court, it is concluded that the possibility for the Constitutional Court to take a similar decision with the case of rapporteur judges metioned above in which the Court declared itself incompetent. As a result, the remedy of the individual appeal was also not effective at the relevent time of the application.
4. In General, the Effectiveness of the Domestic Judicial Remedies and the Opinion of the Venice Commission on This Issue (http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(201…)
4.1. ECHR looks for some qualifications that the domestic remedies should have; among which are effective not only in law but also in practise, offering the the chance of success for the settlement of the case etc. However, the judicial bodies, completely controlled by the ruling party immediate after the High Council of Judges and Prosecutors (HCJP) elections held in 2014, have not been able to make impartial and independent decisions due to being under strong political pressure. Following the coup attempt of 15 July, taking large-scale decisions against judges and prosecutors, HCJP dismissed and arrested thousands of judges and prosecutors under the emergency legislative decree, the remaining member of the judiciary, on the other side, wary that any decision undermining the interests of the executive may affect negatively their careers. As of today in Turkey, in a case of an applicant, lodged by a public official dismissed from his/her duty over the alleged link with FETÖ (which have been already rejected by the Supreme Administrative Court and ordinary administrative courts with the justification of non-existience of any administrative acts due to being based on the emergency legislative decrees), such hero judges are needed to make decisions impartially and independently. Because, the judges face to threat of being dismissed or arrested over the charges of having membership in FETÖ at the time when they render a verdict that undermine the interests of the executives. For instance, the head and the judges of 2nd Criminal court of the Province of Hatay were prosecuted on charges of having membership in FETÖ by HCJP without losing any time because they rejected the indictment drafted by the Chief Public Prosecutors’ Office concerning N.K. due to lack of concrete evidences and specific facts in case file.
4.2.In addition, the dismissed victims have difficulty in finding lawyers to defend themselves. The lawyers charge surprisingly high costs for providing legal services because of the reason that in case of they defend those clients allgedly linked with FETÖ, they face to the risk of being arrested on the same charges. Under such circumstances, it is impossible to claim that the domestic remedies in Turkey are effective, accessible or offer any chance of success in asserting their rights. In line with this, Venice Commission stated in its press release dated December 9, 2016 that the dismissals were apperantly not subject to judicial rewiev by the ordinary courts, or, at least, the accessibility of the judicial review remains a matter of controversy.
4.3. Furthermore, the Venice Commission also pointed out in its opinion formulated upon the request by the Monitoring Committee of the Parliamentary Assembly of the Council of the Europe (PACE) that there are two main obstacles for the domestic judicial remedies before the application with the ECHR. Firstly, the Commission attracted the attentions to an obvious paradox related to the constitutional and judicial review of the emergency measures. It noted : “On 4 August 2016 the Constitutional Court dismissed two of its members, thus confirming, in essence, the validity of Decree Law no. 667 which served as a legal basis for that very decision. Furthermore, the Court of Cassation and other supreme courts of Turkey, as well as the HCJP, dismissed thousands of judges using the extraordinary powers given by Decree Law no. 667. This means that challenging the legitimacy of the process of mass dismissals of judges and prosecutors before those courts will have little chance of success. The judges and prosecutors may probably still seek review of their individual cases, or challenge other aspects of the decree laws, but the general legitimacy of the scheme of dismissals de facto cannot be put into question.”
4.4.The other and more serious obstacle according to Venice Commission is the term “directly” mentioned in § 3 of Article 45 of Law no. 6216: “Individual applications cannot be made “directly” against legislative acts and regulatory administrative acts and similarly, the rulings of the Constitutional Court and acts that have been excluded from judicial review by the Constitution cannot be the subject of individual application.” This article obviously shows that the legislative acts can not be the subject of individual application.
4.5.Likewise, the Turkish Government, in its Memorandum on p. 35, stated, the mass dismissals attached to decree laws had the characteristic of legislative activity in technical terms, so, both the lawsuit and the individual application remedy were not available against these transactions. The mentioned citation is as follows “As the judicial remedy is available against the administrative transactions performed by the administrative boards based on the authorization granted by the Decree Laws […], individual application can be made against these transactions. On the contrary, as the expulsion transactions performed as attached to the Decree Laws have the characteristic of legislative activity in technical terms, both the lawsuit and the individual application remedy are not available against these transactions.”
4.6.Attributing to the government’s above-mentioned memorandum, the commission concluded that if the individual measure is commanded by the decree law itself (in the form of “lists” appended to the decree laws), this measure is, arguably, appealable neither before the Constitutional Court nor before the ordinary courts.
5.1. Unfortunately, in its decision, the Court stated that it had not been shown that at the relevant time Mr Zihni did not have effective access to both remedies, an administrative action and the individual appeal, in order to assert his rights. However, if the reasons, mentioned above, had been complained by Mr. Zihni in his application, and these complaints had been discussed in the Court decision, the Court would probably not have declared the decision inadmissible.
5.2. It is certain that the courts make their decisions on the basis of the evidences, complaints and justifications taking place in the applicaion, in principle. If the above-mentioned complaints had been lodged before ECHR in the application, at high probability, the decision of the Court would not have been inadmissible.
5.3.Unfortunately, it seems that the Court took the decision in the case of Zihni v. Turkey as a result of a judgement which is lack of above-mentioned complaints. However, the mentioned decision was taken by the Court and it will be precedent for other cases which are going to be brought before the ECHR by the individuals dismissed from their duty by legislative decrees of the state of emergency. Attributing the decision of case of Zihni v. Turkey, there is a risk of rejection of such cases by a single-judge without re-examination. However, on the light of above explanations, it is considered that the new applications, lodged by many individuals in the same situation as Mr. Zihni, should be examined by the Court, provided that the application is prepared as well-justified by means of absolute evidences regarding on the issue that the domestic remedies are not effective both in law and in practice.