Individual Application

The Facts

On 21 February 2016, with a view to becoming a military officer, the applicant began training for “Basic Military Service for Officers and Gaining an Understanding of Being an Officer”. The applicant, who was a contracted staff, did not hold any position in the Turkish Armed Forces (TAF) prior to this training. Following the coup attempt on 15 July 2016, the applicant was sent on leave with an order that appeared to cover all those in a similar situation. The applicant was dismissed from the TAF by Decree-Law no. 675 on the Measures to Be Taken under the State of Emergency (Decree-Law no. 675).

On learning that he would not be appointed under Decree-Law no. 675, the applicant brought an action for annulment. The administrative court dismissed the case without examination on the grounds that there was in fact no action (procedure) that could be the subject of administrative proceedings. The Regional Administrative Court dismissed the applicant’s appeal on points of facts and law. The Council of State also dismissed the applicant’s appeal on points of law. In addition, the applicant requested that the file be referred to the Inquiry Commission on the State of Emergency Measures (“the Inquiry Commission”).

The Applicant’s Allegations

The applicant claimed that his right of access to a court had been violated by the dismissal of his action challenging the cancellation by the Emergency Decree-Law of the recruitment activities of officer candidates whose appointment had not been approved, instead of referring it to the Inquiry Commission.

The Court’s Assessment

In the present case, since the action (procedure) against the applicant was taken directly by Decree-Law no. 675, the applicant did not have the opportunity to have the legality of that action directly reviewed by the administrative courts. Indeed, the court dismissed the case without examining it on this ground. However, it appears that there was no examination as to whether the action was within the competence of the Inquiry Commission. However, it is imperative that individuals enjoy procedural safeguards that allow them to challenge any disproportionate or arbitrary interference, even during a state of emergency.

Pursuant to Article 2 § 2 of the Law no. 7075, the actions (procedures) concerning the legal status of natural persons, which are directly regulated by the emergency decree-laws and which are not covered by the first paragraph of the same Article, shall fall within the competence of the Inquiry Commission.

The court’s dismissal, without examining the case, of the applicant’s complaint concerning the termination of his recruitment activity, which is clearly linked to his legal status, and the failure to reinstate him, instead of referring the case to the Inquiry Commission, by applying a constitutional interpretation after finding that the action was taken directly by the Decree-Law, deprived the applicant of the procedural safeguards which would protect him against arbitrariness. This interpretation by the court led to the creation of an area exempt from judicial review. In this respect, it has been concluded that the dismissal of the case by the judicial authorities without any examination and assessment was unforeseeable. In the light of this information, it has been concluded that the interference in the form of the dismissal of the applicant’s complaint following the cancellation of his recruitment by virtue of the Emergency Decree-Law and the non-reinstatement of his appointment without examination and subsequent referral to the Inquiry Commission, employing a method of interpretation which provides the applicant with constitutional safeguards against arbitrariness, was not to the extent required by the situation provided for in Article 15 of the Constitution, which governs the suspension and limitation of the exercise of fundamental rights and freedoms in times of state of emergency.

Consequently, the Court has found a violation of the right of access to a court within the scope of the right to a fair trial.