FROM

Applicant: AD SOYAD

Address: FORMDA YAZILI İLETİŞİM ADRESİ

Phone Number:

E-mail:

TO

The Registrar

European Court of Human Rights

Council of Europe 67075

Strasbourg Cedex - FRANCE

Reference: Submission of additional information after the recent ECtHRand domestic court decisions

Dear Registrar,

I was dismissed from the public service by a Decree Law (DL) under the State of Emergency (SOE). I thought that the Administrative judiciary and the Constitutional Court were ineffective in this context, and I recently lodged an individual application to the ECHR. In the meantime, many administrative courts rejected the cases of the DLs and the plaintiffs who were dismissed from the public service, without examining trial petitions in essence, that "there is no administrative procedure to cancel". I’m sending this petition and the example of court decisions in order to inform your Court about these new developments which is of great importance for the examination of my application.

Meanwhile, on 8/12/206 I have learned that the ECtHR has decided in Akif Zihni v. Turkey case that the court has refused the application on the grounds that the Constitutional Court remedy and the individual applicant's remedy through administrative proceedings were not exhausted. I’m presenting the following additional statements to the Court in the light of current developments that both law remediesare ineffective in theory and practice.

I- Current developments and the ineffectiveness of administrative judiciary in terms of violations of rights

Decisions on the statutory decrees issued after the SOE announced on July 21, 2016, about 100 000 public servants were removed from the public service “without any further administrative action”. The court dismissed many of the plaintiffs' cases against the administrative courts, which were issued by the DLs under the SOE and filed a lawsuit in administrative courts, without reference to the decisions of the Council of State in essence.

According to the decisions that were made by the Turkish Courts after my application to the ECtHR, the administrative courts in many provinces of Turkey rejectedsuch cancellation cases on the grounds that there was “no administrative procedure to cancel”. Eğer İdareMahkemesine açtığınız kaybedilmiş bir şahsi davanız varsa yazın yoksa kırmızı bölümü silin. The cancellation case that I have opened to the …..Administrative Court has been rejected on the grounds that "there are no administrative proceedings to be brought against the cancellation case". (Annex 1)For example, the Trabzon Administrative Court rejected the case on the grounds that there was no administrative action to be taken on the cancellation case (2016 / 1113E - 2016 / 1046K) (Annex-1). Kayseri 1st Administrative Court rejected the similar case filed by a dismissed public servant with the DL # 672 (2016 / 793E - 2016 / 756K) on the grounds that "... there is no administrative act that may be subject to the administrative proceeding to remove the plaintiff from public office" .There have been dozens of administrative court decisions on similar grounds that have been duly rejected, published in the social media and issued after 4 November 2016. These include: Adana 1st Administrative Court's dated 8/11/2016, Adana 2nd Administrative Court's dated 4/11/2016, Ankara's 14th Administrative Court's dated 16/11/2016 (2016 / 5071E - 2016 / 4764K), Afyonkarahisar Administrative Court's dated 21/11/2016, Çanakkale Administrative Court's dated 05/12/2016, Aydin 2. Administrative Court dated 25/11/2016, Istanbul, 10th Administrative Court dated 20/10/2016, 21/11/2016, 31/10/2016 Decisions, İzmir 4th Administrative Court’s dated 16/11/2016, Kastamonu Administrative Court’s dated 24/11/2016, Mersin 2nd Administrative Court’s dated 07/11/2016, Tekirdağ Administrative Court’s dated 11/11/2016 Erzurum Administrative Court’s and Zonguldak Administrative Court’s dated 17/11/2016 decisions can be given as an example.[1]

Apart from these decisions, there are also several administrative courts in the same direction before 4 November 2016. However, the above-mentioned examples have been specially chosen because they are referred after the ECHR in the Akif Zihni v. Turkey decision and after the decision of the Council of State dated 4/11/2016, which sent the related files to the administrative courts

I would also like to point out that the final judicial appeal authority and jurisprudence for the administrative cases is the Council of State (Danıştay) in Turkey. The Council of State is a supreme judicial organ whose last word in administrative disputes is the body of jurisprudence. Even if it is assumed for a moment that the administrative courts will accept cancellation cases, when the Council of State applications are taken into consideration, this law does not offer any success in the event and it is ineffective. First of all, it is clear that the Administrative Prosecution as a whole and in particular the Council of State has no authority of cancellation of the DLs in SOE according to the Turkish Constitution (Article 148/1). In view of the fact that the DLs in SOE are functionally legislative, no cancellation can be instituted in the administrative judiciary against them. In a decision made by the Council of State dated 4/4/2016, it is stated that "DLs in SOE are legal acts which are functionally legal as well as being an act of the executive organ, and the examination of a case filed for the annulment of the judgment of the decrees in the administrative judiciary is legally impossible. The plaintiff was deemed to have been taken from the position of branch manager in accordance with Article 90 of the Decree Law No. 662, and the court was not allowed to make an assessment or to establish another transaction in order to make a reappointment in the Decree Law. For this reason, it is not possible to talk about the existence of a transaction which was established in the defendant administration and which may be subject to administrative proceeding, concerning the plaintiff deemed to have been taken from his post by a legal arrangement with a legal nature ". (Council of State 5th Office, Decision 2014 / 1845E - 2016 / 1931K and dated 4.4.2016).

Moreover, as it is in the complaint of presumption of innocence, the vast majority of the violations of rights I have referred to in the application are directly attributable to the DLs in SOE. Such violations of rights cannot be resolved unless the DLs in SOE are revoked. Since the administrative judiciary does not have cancellation authority of an DL in SOE, it is already impossible for the alleged violation of rights to disappear. Even if the administrative proceeding is effective, it can only ensure the right of access to the court.

Moreover, the ECtHR reference in the Akif Zihni v. Turkey decision is related to the ruling about a judge who was dismissed from the profession by a decision of the High Board of Judges and Prosecutors. In short, the decision given by an administration in this case is already in question, and it is already foreseen that a cancellation case against the administrative court may be filed against this decision. However, I was removed from the public service by an DL in SOE, "without any further administrative action", and the DLs in SOE are ruled in the Turkish Constitution Article 148/1, mentioning that no lawsuit against the cancellation of DLs in SOE cannot be filed.

All these mentioned issues and the current decisions of the administrative courts clearly show that the administrative judiciary is ineffective in theory and practice in terms of the violations of rights that I have lodged on the date of the application and at the time when the application was pending. Therefore, I would like to have the Court decision taking of these matters into consideration.

II- Ineffectiveness of the Turkish Constitutional Court

As the Court (ECHR) has stated in the Akif Zihni v. Turkey judgment, the applicants must only exhaustdomestic remediesthat are effective in theory and in practice at the time the application is made. They do not have to resort to applications that are ineffective at the time of application and do not offer a chance of success.

Although the application of the Constitutional Court for Constitutional Compliance has different meanings, I would like to point out firstly that the Constitutional Court, based on article 148/1 of the Constitution, rejected the main opposition party’s (Republican People’s Party) cancellation case against the 8 different DLs in SOE, on the grounds that there is no authority to superviseDLs in SOE. Since there is no authority to supervise DLs in SOE, in this respect it is almost impossible to audit individual applications and to decide whether to violate them. Such violations cannot be resolved unless the decrees causing the violations, such as presumption of innocence are revoked. Since the Turkish constitutional court cannot audit the DLs in SOE, it will not be able to revoke it and will not be able to resolve the violations directly originating from the DLs. However, as long as the resolutions in question are in legal order, violations such as presumption of innocence will continue to exist.

Furthermore, the Commissioner of Human Rights of the Council of Europe stated in his memorandum to the public that he had met with the authorities and especially with the Minister of Justice and the President of the Constitutional Court on his visit to Turkey and that there were no domestic application routes (remedy) for DLs in SOE.

Apart from these explanations, according to Article 45/3 of Law No. 6216, no individual application can be made to the Constitutional Court against legislative acts and regulatory administrative procedures. The DLs in SOE are functionally legislative (law) and, when this provision is taken into consideration, theoretically, no individual application can be made to the Constitutional Court against the DLs in SOE. There are many decisions made by the Turkish Constitutional Court on this issue and it also shows its ineffectiveness in practice.[2] For example, the Constitutional Court dismissed the 46 applicationsmade by High Board of Judges and Prosecutors examination judges whose duties were terminated by a law dated February 27, 2014, in a decision dated 30/11/2015, on the grounds of lack of jurisdiction by unauthorized subject matter. The Constitutional Court briefly rejected all applicants (the 46 applications of judges) due to unauthorized subject matter(Application No: 2014/4233) stating that the Constitutional Court could not intervene in the legislative power, that it would violate the principle of separation of powers if intervened and would also violate Article 45/3 of the Law No. 6216, Both the law provision and the interpretation and application of this legal order by the Constitutional Court are ineffective both in theory and practice in terms of those who are removed from the public service by DLs in SOE as a legislative act.

III- Ineffectiveness of the domestic law remedy in the opinion and memorandums of the Venice Commission and the Council of Europe Commissioner for Human Rights

Opinion on the SOE DLs of Turkey adopted at the 109th General Assembly meeting held in Venice on 9-10 December 2016, (Turkey - Opinion on emergency decree laws Nos. 667-676 adopted following the failed coup of 15 July 2016, Opinion No. 865/2016” (CDL-AD(2016)037), 12 December 2016)[3] states that it is admitted by the Turkish Government that it is not possible to take actions in the Constitutional and administrative courts for the individual measures determined by the lists attached to the DLs of the SOE- (Paragraphs 201, 207 and footnote 134). In other words, the Turkish authorities have personally admitted to the Venice Commission that the state officials who have been dismissed from the public service by the DLs have no right to apply to the administrative courts and the Constitutional Court ((the Government’s Memorandum, CDL-REF (2016)067, p. 35)[4].

The Memorandum of the Commissioner for Human Rights of the Council of Europe on October 7, 2016. Memorandum on the human rights implications of the measures taken in the SOE in Turkey has a similar acceptance (Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey)[5]. In this memorandum (CommDH (2016) 35). it is clearly stated that the Minister of Justice stated that the names attached to the lists of DLs were not included in the judicial applications.

Result

For the reasons explained above, both the administrative judicial remedy and the individual application remedy shall be ineffective in theory and practice as of the date on which the application was made and pending, and I request from the Court that this to be taken into account in the examination of my application. 15/12/2016.

Applicant

Signature

Attachments

1- Trabzon Administrative Court decision of 8/9/2016

1

[1] For decisions taken before and after 4 November 2016, see

[2]As examples of decisions the Constitutional Court has rejected on account of unauthorized individual applications made due to human rights violations resulting from life, Decision of Arif Güneş (Application No: 2013/837) dated 5/3/2013 and decision of Gökhan Ünal (Application No: 2012/30), Decision of Ahmet Soysal dated 26/3/2013 (2012/237) and 16/4/2013 The decision of Süleyman Erte dated (2013/469, paragraph.19).

[3]

[4]In the Memorandum of the Government presented to the Venice Commission, "[...] As the expedition has done, it has been included in the Decree Laws of the legislative activity in the technical terms, both lawsuits and the individual applications. The Government's Memorandum, CDL-REF (2016) 067, p.35

[5]