Case: Fazli Aslaner v. Turkey
Judgement date: 4 March 2014
Topic: Independence of the justice system
Aspect: Concurrent judicial functions in the same case

Summary of the facts:
This case concerned administrative proceedings in which judges at the Turkish Supreme Administrative Court had been involved on more than one occasion, in the context of successive appeals on points of law. The applicant complained that some of the judges who had sat on the bench of the Division of the Supreme Administrative Court which had heard and determined his case had also sat in the General Assembly. He submitted that those judges could not have been impartial because they had already given their opinion on the merits of the case.

Summary of the Court's findings:
The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant’s concerns regarding the impartiality of the General Assembly as it was composed in the instant case could be regarded as objectively justified. It noted in particular that the fact that certain judges had previously formed an opinion did not in itself suffice to conclude that the impartiality of the general assembly of administrative divisions had been affected. Equally, the Court considered in the instant case that the number or (relatively low) proportion of judges concerned by the issue of objective impartiality was not decisive, and that quantitative considerations did not have an impact on examination of the case, give that there had existed no serious ground rendering absolutely necessary the participation of the three judges in question on the bench with voting capacity. In addition, one of the three judges, in her capacity as deputy president of the Supreme Administrative Court, had presided over the assembly of administrative divisions, and had accordingly led the discussions during the deliberations, which amounted to an additional circumstance undermining the appearance of impartiality.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and lives in Ankara.
6. In 1993 the applicant, who was a court registrar ( zabıt kâtibi ) in the registry of the Ankara Tax Court, passed a local competitive examination organised by the Ankara Judicial Committee for the post of head registrar ( yazı işleri müdürü ) at the Ankara State Security Court. However, since his ranking ( 15 th place) in the competition was insufficient for him to obtain the post, he was placed on the reserve list drawn up at the close of the competition. The first successful candidate was appointed to the post in question. The second successful candidate was subsequently appointed to a position as head registrar in the second section of the Ankara State Security Court.
7. On 20 August 1997 the applicant applied to the Ministry of Justice to be appointed to the post of head registrar at the Eskişehir Administrative Court.
8. The authorities having refused his request, he lodged an application for judicial review with the Ankara Administrative Court ( “ the Administrative Court ” ).
9. By a judgment of 17 September 1998 the Administrative Court upheld the applicant ’ s claims. The court found that of the candidates who had passed the aforementioned competition, seven who had done better and eleven who had done less well than the applicant had been appointed head registrars in other judicial districts, and concluded that the authorities ’ refusal had had no basis in law.
10. The Ministry of Justice appealed on points of law against that judgment.
6. As the appeal lacked suspensive effect, the Ministry proceeded to appoint the applicant to the post of head registrar in Eskişehir, in compliance with the judgment.
7. On 20 December 2000 the Fifth Administrative Proceedings Division of the Supreme Administrative Court ( “ the Fifth Division ” ) quashed the impugned judgment, contrary to the submissions of the Advocate-General, Ms A.Ö. The Fifth Division pointed out that the competitive examination organised by the Ankara Judicial Committee had been intended to fill a post in the Ankara State Security Court and that registration on the reserve list had not entitled the candidate in question to a post as head registrar in a court within the jurisdiction of a different judicial committee. It explained that an appointment could only be made to another judicial district at the request of the judicial committee in question or else in order to meet current judicial needs, upon a decision from the Ministry of Justice, which had discretionary powers in this field.
8. The bench comprised five judges, including Ms T.Ç. and Mr M.R.Ü., and was presided over by Mr E.Ç.
9. On 21 March 2002 the same division dismissed a request by the applicant for rectification of the judgment, on the grounds that none of the preconditions for recourse to this remedy as set out in the Code of Administrative Procedure had been met.
10. On 1 July 2002 the Administrative Court decided to maintain the position set out in its initial judgment, thus electing to disregard that adopted by the Fifth Division of the Supreme Administrative Court ( ısrar kararı ).
11. Following a fresh appeal on points of law lodged by the authorities, the case was referred automatically to the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court ( Danıştay İdari Dava Daireleri Genel Kurulu; “ the General Assembly ” ) owing to the resistance of the court of first instance.
12. On 17 January 2003 the said General Assembly quashed the judgment delivered by the Administrative Court by twenty - two votes to nine. Mr E.Ç. and Mr M.R.Ü. were on the bench, which was presided over by Ms T.Ç. in her capacity as Vice- President of the Supreme Administrative Court, a post to which she had recently been elected. The bench also included three judges who had adjudicated on the request for rectification of the Fifth Division ’ s judgment of 20 December 2000.
13. On an unspecified date the applicant submitted a request for rectification of the General Assembly ’ s judgment.
14. On 11 December 2003 the General Assembly rejected that request on the grounds that none of the conditions set out in the Code of Administrative Procedure had been met. Ms A.Ö., who had recently been promoted to the Supreme Administrative Court, sat on the bench, alongside other judges who had previously adjudicated in the case.

Relevant law and the Court's assessment:
THE LAW
I. COMPLAINTS ALLEGING A LACK OF IMPARTIALITY ON THE PART OF THE SUPREME ADMINISTRATIVE COURT
15. The applicant alleged that the Supreme Administrative Court benches hearing and determining his case had not been impartial and had therefore infringed his right to a fair hearing as secured by Article 6 of the Convention, the relevant parts of which read as follows :
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... ”
16. The Government contested that argument.
17 2. The Court observes that this complaint breaks down into three branches. The first branch concerns the alleged lack of impartiality on the part of the General Assembly bench which determined the second appeal on points of law, owing to the participation of Ms T.Ç., Mr E.Ç. and Mr M.R.Ü. The second branch relates to the alleged lack of impartiality of the same bench owing to the participation of judges who had sat in the Fifth Division of the Supreme Administrative Court during its consideration of the request for rectification of the judgment. The third branch concerns the alleged lack of impartiality of the General Assembly bench which had determined the request for rectification of the 17 January 2003 judgment owing to the participation of several judges who had already heard and determined the case.
23. The Court considers it necessary to examine the first branch of the complaint separately from the other two.
A. The first branch of the complaint
...
2. Merits
( a) The parties ’ submissions
25. The applicant complained that some of the judges who had sat on the bench of the Fifth Division of the Supreme Administrative Court which had delivered the judgment on 20 December 2000 had also sat in the General Assembly. He submitted that those judges could not have been impartial because they had already given their opinion on the merits of the case.
26. The Government contested the applicant ’ s arguments. They submitted that the first and second appeals on points of law had not concerned the same subjects, even though they had referred to the same case. The Government claimed that the first appeal on points of law had been geared to determining the lawfulness of the Administrative Court ’ s first judgment, while the second had been intended to verify the lawfulness of the Administrative Court judgment overriding the judgment of the Supreme Administrative Court.
27. The Government added that the judges whose impartiality had been challenged could not have been considered parties to the proceedings because it was not the judgment which these judges had handed down that had been referred to the General Assembly for review, but rather the Administrative Court judgment. The Government added that the General Assembly had not been required to choose between the judgments of the Fifth Division and the Administrative Court and that it had been free to reach a completely different finding, which it had done on many occasions in the past.
28. Lastly, the Government explained that under circumstances similar to those of the present case, the judges who had sat in a division of the Supreme Administrative Court had on occasion changed their minds when sitting in the General Assembly to examine a second appeal on points of law, and that they had joined the position adopted and subsequently upheld by the Administrative Court.
29. Consequently, the Government submitted that the composition of the General Assembly had not infringed the impartiality principle set forth in Article 6 of the Convention.
( b) The Court ’ s assessment
30. The Court notes that the applicant ’ s fears regarding a lack of objective impartiality on the part of the General Assembly arise from the fact that three of the judges who sat on the bench in question had previously been involved in examining the first appeal on points of law.
31. The Court reiterates that objective impartiality must be assessed using an approach which, when applied to a body sitting as a bench, involves determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality (see Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII). It adds that in this context even appearances may be of some importance. It follows that when deciding whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those alleging such bias is important but not decisive. What is decisive is whether such fear can be held to be objectively justified ( see Gautrin and Others v. France, 20 May 1998, § 58, Reports of Judgments and Decisions 1998 ‑ III). In this connection, the mere fact that a judge has already taken pre-trial decisions cannot in itself be regarded as justifying doubts as to his or her impartiality (see Ökten v. Turkey ( dec. ), no. 22347/07, 3 November 2011); what matters is the scope of the measures taken by the judge before the trial. Likewise, the fact that the judge has detailed knowledge of the case file does not entail any prejudice on his or her part that would prevent him or her from being regarded as impartial when the decision on the merits is taken. Nor does a preliminary analysis of the available information mean that the final assessment has been prejudged ( see, for example, Morel v. France, no. 34130/96, § 45, ECHR 2000-VI).
32. In this case, therefore, in the light of all these principles, the Court must decide whether, having regard to the nature and extent of the judicial review required of the General Assembly, the three judges in question displayed, or could legitimately be considered to have displayed, bias with regard to the decision on the merits of the case ( see D.P. v. France, no. 53971/00, § 36, ECHR 2004 ‑ I). This would be the case, for instance, where the questions with which they had successively had to deal were similar, or at least if the difference between them was negligible ( see, among many other authorities, Kleyn and Others v. Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 201, ECHR 2003 ‑ VI; Indra v. Slovakia, no. 46845/99, §§ 51 to 55, 1 February 2005; Toziczka v. Poland, no. 29995/08, §§ 36 and 42 to 46, 24 July 2012; and Hauschildt v. Denmark, 24 May 1989, § 52, Series A no. 154).
33. In the instant case the Court observes that in the first appeal on points of law, the question considered by the Fifth Division of the Supreme Administrative Court involved reviewing the lawfulness of the judgment of the Administrative Court of 17 September 1998 by determining whether, in the procedures for appointing candidates to positions of head registrar in a judicial district other than the one to which the competitive examination related, the authorities ought to have adhered to the ranking order of the candidates included on the relevant reserve list.
34. The Court notes that following the decision of the Administrative Court to maintain its initial position and therefore to disregard that adopted by the Fifth Division of the Supreme Administrative Court, the case was referred to the General Assembly by means of an appeal on points of law lodged by the authorities. At that stage the question to be determined was not whether the Administrative Court had the right to resist, given that that right had in no way been challenged : the point on which the General Assembly was called upon to adjudicate was the lawfulness not of the second judgment of 1 July 2002 but of the first judgment, which the Administrative Court wished to maintain. In other words, the question to be decided once again concerned the lawfulness of the Administrative Court ’ s judgment to the effect that the authorities were bound by the ranking order of candidates in the competitive examination, even in respect of appointments in other judicial districts.
35. The Court notes, however, that three of the thirty-one judges who sat in the General Assembly had previously been on the bench of the Fifth Division, and that those three judges had therefore already participated in taking a decision in the same case on the question which they now had to consider. Consequently, they could legitimately be considered to have displayed bias with regard to the decision to be taken on the merits of the second appeal on points of law.
36. Nevertheless, the Court considers that the fact that some judges had previously adopted a particular position is not sufficient in itself to demonstrate that the impartiality of the General Assembly was undermined in the present case.
37. In this kind of situation, as the Court has previously held, it is necessary also to take into account such other factors as the number of judges involved in adopting the aforementioned position and their role on the bench in question.
38. In this connection, the Convention institutions have already dismissed similar complaints on the grounds of the small proportion of judges concerned on benches which take majority decisions ( see Ferragut Pallach v. Spain ( dec. ), no. 1182/03, 28 February 2006; Garrido Guerrero v. Spain ( dec. ), no. 43715/98, ECHR 2000 -III; OOO ‘ Vesti ’ and Ukhov v. Russia, no. 21724/03, § 83, 30 May 2013; Diennet v. France, 26 September 1995, § 38, Series A no. 325 ‑ A; and Guisset v. France, no. 33933/96, ( Plenary ) Commission decision of 9 March 1998, Decisions and Reports 92- B p. 138).
39. Furthermore, the Court reiterates that it has already found violations of the right to an impartial tribunal in a number of cases, taking into consideration both the large proportion of judges concerned and their duties as president or rapporteur on the bench ( see Cardona Serrat v. Spain, no. 38715/06, § 37, 26 October 2010; Castillo Algar v. Spain, 28 October 1998, §§ 41 - 53, Reports 1998 ‑ VIII; Perote Pellon v. Spain, no. 45238/99, § 50 in fine, 25 July 2002; and Olujić v. Croatia, no. 22330/05, § 67, 5 February 2009).
40. In the present case the Court holds that the number or proportion of judges concerned by the issue of objective impartiality is not decisive and that considerations of a quantitative nature do not affect the assessment of the question because there were no compelling reasons making it absolutely necessary for the three judges in question to sit on the bench with entitlement to vote.
41. Moreover, the Court observes that Ms T.Ç., one of the three judges in question, in her capacity as Vice-President of the Supreme Administrative Court, presided over the General Assembly and that she therefore led the discussions during the proceedings, which constitutes an additional circumstance incompatible with the appearance of impartiality.
42. These two factors are such as to objectively justify the applicant ’ s concerns regarding the objective impartiality of the General Assembly as it was composed in the instant case.
43. There has accordingly been a violation of Article 6 of the Convention under this head.
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