SECOND SECTION
 
 
 
 
 
CASE OF HÜLYA EBRU DEMİREL v. TURKEY
 
(Application no. 30733/08)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
STRASBOURG
 
19 June 2018
 
FINAL
 
03/12/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
. In the case of Hülya Ebru Demirel v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Robert Spano, President,
 Paul Lemmens,
 Ledi Bianku,
 Işıl Karakaş,
 Nebojša Vučinić,
 Valeriu Griţco,
 Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 22 May 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 30733/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Hülya Ebru Demirel (“the applicant”), on 17 June 2008. 2. The applicant was represented by Mr Y. Alataş, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant alleged, in particular, that the administrative authorities’ refusal to appoint her to the post of security officer and her subsequent dismissal from that post had been discriminatory. She also complained of the unfairness of the proceedings before the administrative courts. She relied on Articles 6 and 14 of the Convention. 4. On 8 January 2014 the complaints under Article 14 in conjunction with Article 8 of the Convention and Article 6 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1976 and lives in Kilis. 6. On 17 October 1999 the applicant sat an examination in order to become a civil servant. She was successful in the examination and on an unspecified date she was informed by the State Personnel Department attached to the Prime Minister’s office that she had been appointed to the post of security officer in the Kilis branch of TEDAŞ (Türkiye Elektrik Dağıtım A.Ş. – Turkish Electricity Distribution S.A.), a State-run electricity company. 7. On an unspecified date TEDAŞ informed the applicant that she would not be appointed to the post in question as she did not fulfil the requirements of “being a man” and “having completed military service”. 8. On 4 September 2000 the applicant lodged an action against TEDAŞ with the Gaziantep Administrative Court requesting the annulment of the decision of the Kilis Branch of TEDAŞ not to appoint her to the post in question and a stay of execution of this decision. 9. On 9 May 2001 the Gaziantep Administrative Court ordered the stay of execution of TEDAŞ’s decision not to appoint the applicant as a security officer. The court considered that “being a male” was not a requirement for the post. 10. On 23 July 2001 the applicant was offered a contract by the Kilis branch of TEDAŞ subject to a probationary period of six months. On an unspecified date the applicant took up her duties. 11. On 4 October 2001 the Gaziantep Administrative Court annulled the decision of the Kilis branch of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. It further noted in that connection that since there had not been a specific requirement to recruit only male candidates for the said post, the fact that the applicant had been rejected solely on account of her sex had been unlawful. 12. On 28 January 2002 TEDAŞ lodged an appeal against the judgment of 4 October 2001, requesting that the Supreme Administrative Court order a stay of execution of the judgment of the Gaziantep Administrative Court and subsequently quash it. 13. On 12 April 2002 the Twelfth Division of the Supreme Administrative Court granted the stay of execution of the judgment of 4 October 2001. 14. On 11 June 2002 TEDAŞ informed the applicant that her contract of employment had been terminated on 27 May 2002 by virtue of the Supreme Administrative Court decision of 12 April 2002. 15. On 26 December 2002 the Twelfth Division of the Supreme Administrative Court quashed the judgment of 4 October 2001. The Supreme Administrative Court considered that given that there had been a requirement of “having completed military service”, the post had been reserved for male candidates only. The Supreme Administrative Court therefore found that the decision not to appoint the applicant to the post had been in accordance with the law. 16. On 23 October 2003 the Gaziantep Administrative Court dismissed the applicant’s case by following the reasoning of the Supreme Administrative Court. 17. The applicant appealed against the decision of 23 October 2003 and argued that the Supreme Administrative Court’s interpretation, namely that the post in question must have been reserved only for male candidates given that there was a requirement to complete military service, ran counter to the principle of equality and the State’s positive obligation to ensure non‑discrimination between men and women. In support of her arguments, the applicant maintained that this obligation was set out not only in Article 10 of the Constitution but also in Article 2 § d of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women as well as Article 3 of the International Covenant on Economic, Social and Cultural Rights. She further argued that it was of no importance to dwell on whether the post in question had been reserved for male candidates only, since such a reservation itself would be contrary to the prohibition on discrimination on the basis of sex in access to employment as set out in the relevant international instruments and European Union regulations. On 16 November 2017 the Twelfth Division of the Supreme Administrative Court unanimously upheld the decision of 23 October 2003, without replying to the arguments of the applicant. 18. On 6 December 2007 the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions (Danıştay İdari Dava Daireleri Genel Kurulu), the composition of which included some members of the Twelfth Division, delivered a decision in favour of R.B., who, like the applicant had been a female candidate for TEDAŞ whose application to be appointed to the post of security officer had been rejected by TEDAŞ on account of not fulfilling the requirements of “being a male” and “having completed military service”. The General Assembly held that the requirement of “having completed military service” should be considered to apply only to male candidates. It found, however, that it was unlawful to refuse to appoint R.B. on that ground. 19. On an unspecified date, the applicant applied for rectification of the decision of 16 November 2007, and maintained the arguments she had submitted during appeal (see paragraph 17 above). Relying on the right to a fair hearing, she argued that her submissions concerning the prohibition of discrimination were also supported by the findings of the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions in its decision concerning the case of R.B.; she therefore requested the Supreme Administrative Court to rectify its decision of 16 November 2007. 20. In the rectification proceedings the judge rapporteur of the Twelfth Division submitted his written opinion on the merits of the case and argued, inter alia, that the decision of 16 November 2007 should be rectified in the light of the decision of the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions of 6 December 2007 in the case of R.B. He also noted in that connection that Turkey had ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and that pursuant to its Article 11, the State was bound to take all appropriate measures to ensure, inter alia, the right to the same employment opportunities on a basis of equality of men and women, including the application of the same criteria for selection in matters of employment. 21. On 24 June 2009 the Twelfth Division of the Supreme Administrative Court dismissed the applicant’s application for the rectification of its previous decision, holding that none of the reasons put forth by the applicant for rectification fell within the exhaustive list of permissible grounds for rectification indicated in section 54 (1) of the Administrative Procedure Act (Law no. 2577) and that its previous decision was in accordance with law and procedure. Therefore the Gaziantep Administrative Court’s decision of 23 October 2003 became final. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
22. The relevant domestic law in force at the material time, and the relevant international material can be found in Emel Boyraz v. Turkey (no. 61960/08, §§ 26-30, 2 December 2014). 23. The relevant provisions of the Administrative Procedure Act (Law no. 2577), as in force at the material time, provided as follows:
Section 49 - Grounds for setting aside a judgment
“1. On appeal review, the Supreme Administrative Court may quash a judgment on the following grounds:
a)  lack of jurisdiction,
b)  incompatibility with the law,
c)  incompatibility with procedure.
...
4.  [In a case where a judgment has been quashed on appeal and remitted to the relevant court,] the court may insist on its previous judgment. If the parties appeal against this judgment, the case shall be examined by the General Assembly of Administrative or Tax Proceedings Divisions, depending on the subject-matter. If the General Assembly agrees with the decision, it shall quash the judgment; otherwise, it shall uphold it. The decisions of the General Assembly are binding.
...”
Section 54 - Rectification of a decision
“1. Rectification of a Supreme Administrative Court decision, or a decision of the General Assembly of Administrative or Tax Proceedings Divisions ... may be applied for by the parties within fifteen days of the notification of the impugned decision on the following grounds:
a)  The decision does not address the arguments and objections of the parties concerning the merits of the dispute,
b)  The decision contains contradictory provisions,
c)  The decision is not in accordance with the law or procedure,
d)  Some of the documents examined during the appeal proceedings were fraudulent or false. 2. The Supreme Administrative Court and regional administrative courts [in their examination] shall be bound by the reasons put forth by the parties in their application for rectification. 3. Review for rectification shall be carried out by the same division of the Supreme Administrative Court, which rendered the decision subject to rectification. The judge rapporteur who was previously assigned to the case may not act in this role during the rectification review.”
Section 55 – Special provisions concerning the reopening of the proceedings and rectification of a decision
“... 2. The request [for rectification of a decision or reopening of proceedings] shall be examined after the defendant party makes its submissions. Provided that the legal grounds for rectification or reopening are met, [the Supreme Administrative Court] shall re-examine the case and render a decision. 3. If the request does not correspond to the legal grounds permitted by law, the request shall be dismissed.
...”
24. The relevant provisions concerning the rectification of a decision in the Administrative Procedure Act were repealed by Law no. 6545, published in the Official Gazette on 28 June 2017, which provided for a transitional period during which the rectification of a decision remedy would be gradually phased out. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
25. Relying on Article 14 of the Convention and Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which prohibits discrimination against women in the field of employment, the applicant complained that the administrative authorities’ decisions and the domestic courts’ judgments had constituted discrimination against her on the grounds of sex. 26. The Government contested that argument. 27. The Court, as the master of the characterisation to be given in law to the facts of any case before it and having regard to the circumstances of the present case, considers that this complaint falls to be examined under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention (see Emel Boyraz v. Turkey, no. 61960/08, § 33, 2 December 2014, and the cases cited therein, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). Articles 8 and 14 of the Convention read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Admissibility
28. The Government submitted that neither Article 8 nor Article 14 was applicable in the instant case as it concerned a right which was not secured by the Convention, namely the right of access to a particular profession. 29. The applicant contested that claim. 30. The Court notes that it has already examined and rejected the Government’s preliminary objection in the case of Emel Boyraz (cited above, §§ 38-46). The Court finds no particular circumstances in the present case which would require it to depart from that conclusion. The Court considers that Article 14 of the Convention is applicable in the circumstances of this case, taken in conjunction with Article 8, and rejects the Government’s objection. 31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
32. The Government maintained that there had been an objective and reasonable justification for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates who had completed military service. According to the Government such a requirement could not be deemed discriminatory in view of the nature of the duties of the post, which involved using firearms and working at night. 33. The applicant contested that argument by submitting that the sole reason she had been refused the post in question had been her sex. The applicant also disagreed with the Government that the difference in the treatment of female and male candidates could be justified by taking into account the dangerous factors implied in the occupation of a security officer. She submitted in that connection that many women in Turkey were successfully employed in dangerous occupations, such as police officers, army pilots and prison guards. 34. The Court reiterates that in Emel Boyraz it held that the decisions of the administrative and judicial authorities finding that the post of security officer was reserved solely for male candidates had amounted to a clear difference of treatment, on grounds of sex, between persons in an analogous situation (see Emel Boyraz, cited above, § 52). After thoroughly examining whether there were reasonable and objective grounds that justified such a difference of treatment, the Court held in that case that the impugned difference of treatment had not pursued a legitimate aim (ibid., §§ 53‑56). 35. In the instant case, the Court observes that the administrative authorities and the Twelfth Division of the Supreme Administrative Court reviewing the conformity of the impugned administrative decision with the law both considered that the post of security officer in the Kilis branch of TEDAŞ had been reserved for men and that therefore the applicant, as a woman, had been excluded. What is more, the decision of the Twelfth Division of the Supreme Administrative Court did not adduce any reasons other than the applicant’s sex for her not having been appointed to the post in question. The present case is, therefore, identical to Emel Boyraz in which the Court concluded that the decisions of the administrative and judicial authorities had amounted to a discriminatory difference in treatment in breach of Article 14 taken in conjunction with Article 8 of the Convention (ibid., § 56).

Article of the Convention at issue: Article 6
Outcome: no_violation